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ARBITRATION 

BEFORE 

THE HONORABLE EDWARD D. WHITE 
CHIEF JUSTICE OF THE SUPREME COURT OF THE UNITED STATES 

OF THE DIFFERENCES BETWEEN 

THE REPUBLIC OF PANAMA 

AND 

THE REPUBLIC OF COSTA RICA 



ANSWER 



ON BEHALF OF THE REPUBLIC OF PANAMA TO THE ARGUMENT SUBMITTED ON 
BEHALF OF THE REPUBLIC OF COSTA RICA 



/?/^-^6y^ 



ARBITRATION 



BEFORE 



The Honorable Edward D. White 
Chief Justice of the Supreme Court of the United States 

OF THE DIFFERENCES BETWEEN 

The Republic of Panama 

AND 

The Republic of Costa Rica 



Answer 



on behalf of the Republic of Panama to the Argument submitted 
on behalf of the Republic of Costa Rica 






D. of D. 
FEB H 1916 



ri 



ANSWER 

On behalf of the Eepoblic of Panama to the Aegument submitted on behalf of 

THE Republic of Costa Riga. 



The voluminous argument and the great mass of books and maps submitted on 
behalf of the Republic of Costa Rica are both so remote from the subject of this 
Arbitration that it becomes desirable, before considering them, to state again the 
question which is submitted to the present distinguished Arbitrator, that there may 
be clearly in view the standard by which the relevancy and value of all arguments 
and proofs adduced in this proceeding must be tested and decided. 

By the question submitted, as defined in the Convention signed on March 17th, 
1910, the scope of this Arbitration is conclusively fixed and defined. Beyond that 
question there is no controversy before the Arbitrator, nor can any Award be made ; 
and no argument and no proof can have any relevancy or force which does not tend 
directly to determining the answer to it. 

That question is defined with a clearness and exactness which leave no room for 
doubt or dispute, in Article I of the Convention as follows : 

" WAai'is the l)oundary hetioeen Panama and Costa Rica under and rnost 
in accordance with the correct interpretaiion and true intention of the Award of 
the President of the French Repuhlic made the 11th of September, 1900 ? " 

The words are familiar to all persons connected with this Arbitration in any way. 
This is the question, and the only question, which the present distinguished Arbi- 
trator was asked to decide ; this is the only question which he consented to decide. 
But, familiar as the words are, we have thought it useful here to produce them again, 
for it is from this point that we must start in considering the argument of Costa Rica. 
To ask the Arbitrator to make an award which shall be anything but an answer to 
this specific question is to ask of him what he is neither authorized nor has consented 



to do. Not the boundary as an abstract, undetermined question is concerned, but 
only and exclusively the boundary under the Loubet Award. 

If any doubt were possible as to the meaning of the question as formulated in 
the Convention (although language cannot be clearer) it would be dispelled by the 
remainder of Article I. which states the controversy which gives rise to this Arbi- 
tration. 

" The Eepublic of Panama and the Kepublic of Costa Rica, although 
they consider that the houndary hetween their respective territories designated 
hy the Arbitral Award of His Excellency the President of the French Republic 
the 11th of September, 1900, is clear and indisputable in the region of the 
Pacific from Punta Burica to a point beyond Cerro Pando on the Central 
Cordillera near the ninth degree of North latitude, have not been able to reach 
an agy'eement in respect to the interpretation which ought to be given to the 
Arbitral Award as to the rest of the boundary line and for the purpose of 
settling their said disagreements agree to submit to the decision of the Honor- 
able Chief Justice of the United States " * * * 

Their only disagreement is thus stated to be be as to the interpretation of a part 
of President Loubet's Award. Where both found it cleai", no question is raised nor 
exists ; it is only the interpretation of the remainder of the Award which causes any 
disagreements and it is only " said disagreements " which are submitted, now, to arbi- 
tration. It is, then, only to obtain an authoritative interpretation of the Loubet 
Award that this Arbitration was constituted and the question submitted, framed. 
Were it possible to argue anything else from any other words in the Convention, 
this would be a complete answer. The only question which can be raised is : what is 
the boundary awarded by President Loubet ? 

Now it is not too much'tn say that not a word in the long and elaborate argu- 
ment for Costa Kica, not a word in the many volumes, not a line in the numerous 
maps which she has submitted as proofs, has any tendency, even, to assist in an 
answer to this question. 

A large part of the argument is taken up with matters of history 
anterior to the Loubet Award. We need not consider whether this histor- 
ical matter is accurate and complete or not. Whatever of force 
any of it ever had was undoubtedly presented to President Loubet by the learned 
and distinguished representatives of Costa Eica on the arbitration before him. Here, 
at any rate, it has no relevancy. This Arbitration begins with his award as if there 



had never been a fact or a document relating to this boundary (except the conventions 
. under which he acted) before that event. Whatever argument might be made by any- 
one for one or another line, based upon matters before the Loubet Award, no such 
argument can be invoked now. That Award is, as we said in our former Statement, 
an absolute datum, so far as this Arbitration is concerned. Its entire correctness 
cannot be questioned here. 

It is, no doubt, true that reference might be made to any events or documenst 
preceding the Loubet Award, if any obscurity were found in it which such events or 
documents might serve to elucidate ; but that is not, in fact, the case. The argument 
of Costa Eica is addressed, not to elucidating the Award, but to showing it to be 
erroneous ; not to making plain what President Loubet decided, but to proving that 
he should have decided otherwise. Indeed, in this part of their argument, the learned 
representatives of Costa Eica appear, by implication, to admit that the Award is 
plain and needs no elucidation, for they constantly contend that it is unjust and 
without foundation in fact. Unless they were clear as to what line the Award fixed, 
they could hardly complain of it as erroneous. 

But, at any rate, there is no pretence that the argument for Costa Eica serves, or 
is intended to serve, to aid in determining the " correct interpretation " or the " true 
intention " of the Loubet Award. The sole purpose of that argument is to show that 
tlie Loubet Award is erroneous ; and that is a question not before the present 
Arbitrator. 

The Convention of Arbitration, so far from authorizing any review or modifica- 
tion of the Loubet Award, prohibits it, by the form in which the question submitted 
is expressed. Not what should have ieen the Award of President Loubet, but what 
ivas his Award, properly construed and applied, is the question, and the only question, 
before the Arbitrator. Language cannot be plainer, and we are at a loss to under- 
stand why the learned representatives of Costa Eica should have devoted so much 
space and time to an argument which, even if it were well-founded, could not avail. 
Whatever their motive, the fact remains that such an argument is wholly irrelevant to 
the present arbitration. 

Another considerable part of the Argument for Costa Eica is devoted 
to an attempt to show that the Loubet Award is void for defect 
of ultra peiita, based upon two contentions : first, that some of the territory awarded 
by President Loubet to Colombia had never been really in dispute, but had always 



been the undisputed territory of Costa Eica ; second, that some of that territory lay 
outside the line proposed, on that arbitration, by Dr. Silvela, one of the counsel for 
Colombia, though the Silvela line would have given Colombia vastly more territory, 
as a whole, than President Loubet, in fact, awarded her. 

The logical conclusion from this contention would be that the Loubet Award is 
void ; but, while Costa Rica asserts that such is the case, she formally disclaims any 
demand for its annulment. > Such a demand, indeed, she cannot make. The Con- 
ventions of 1886 and 1910, as well as her conduct ever since the Award, cut her oif 
from any such contention. 

She does, however, make this assertion of ultra petita the ground for requesting 
the present Arbitrator to award a line different from that of the Loubet Award and 
so substantially to disregard it. This course differs from an annulment of the Award 
only in form. The result is the same whether the Award be declared void or so 
defective as to require a total change in the only parts now under consideration, in 
order to avoid ^dtra petita. It will be seen from a consideration of the alternative 
lines which Costa Eica requests ^ that neither of them has the least resemblance to 
the line awarded by President Loubet. Neither can be the boundary " under and 
most in accordance with " the Loubet Award, which under the Convention of 1910, 
the present Arbitrator is to fix. Both of them are new lines not based upon that 
Award and which are asked by Costa Eica, not because the Loubet Award at all 
justifies them or because they at all accord with it, but because she argues that they 
are lines which are just and in accordance with what President Loubet should have 
awarded (in her view) but did not award. An award of one of these lines is asked 
" as the most just and equitable boundary " .^ 

Thus the alternative boundaries asked by Costa Eica are neither of them in- 
tended to be lines resulting from the Loubet Award but altogether different lines, 
inconsistent with it and based, not upon anything which President Loubet awarded or 
decided, but upon the theory that his decision was erroneous.* 

We need not point out again how completely at variance with the purpose and ob- 
ject of this arbitration such a request is, and how entirely foreign to the question here 

' Argument for Costa Rica p. 270. 
' Argument for Costa Rica, pp. 340, 454^456. 
» Ibid. p. 454. 
* Argument for Costa Rica, pp. 332, 340. 



to be considered are arguments based upon the abstract desirability of one boundary or 
another. For the present we desire only to note that this contention, as an argument 
for disregarding the Loubet Award, does not tend to the solution of the question sub- 
mitted to arbitration, that the terms of the Convention and Costa Eica's conduct make 
it impossible of consideration now, and that it is a subject not submitted to the present 
Arbitrator, not consistent with the terms of the submission to him and which he would 
find himself not authorized to consider. 

Another considerable part of the argument submitted for Costa Rica is devoted 
to an attempt to show that the Loubet Award is insensible in itself, and so inapplica- 
ble to the natural features of the country that it is impossible to apply it, even 
approximately. 

We shall have occasion to consider more in detail this part of the argument, 
which has, we believe, no seriousness. We desire to note here only that this argu- 
ment, too, if it could succeed, would have the eflfect of making any decision by the 
Arbitrator impossible. If the Loubet Award were really so obscure in its terms that 
it could not be given an intelligible meaning or so at variance with the natural 
features of the country that its true intention could not be discerned, then no award 
would be possible on this arbitration. 

The functions of the present distinguished Arbitrator are confined to an applica- 
tion of the existing Loubet Award. In no case is he to fix the boundary apart from 
that Award, nor has he ever been asked or consented to assume such a task. If it 
were conceivable that he should find, as Costa Rica contends, that the Loubet Award 
could not be applied, he could only declare that fact ; and with that declaration this 
arbitration would end. 

The Argument for Costa Rica goes into vague speculations, as to President 
Loubet's general intentions,' but with these we have, on this arbitration, nothing to 
do. It is the " correct interpretation and the true intention " of the Award only, with 
which we are concerned. If we were morally satisfied that President Loubet had 
intentions which the Award does not express, those intentions could not be taken into 
account. -The case wonld be like that with which all courts are familiar and which 
so often arises under a will, where the Court may plausibly conjecture that the 
testator did not intend the result which the language of the will necessarily produces, 
but can only say, " I'ket quod voluit sed non dixit," and enforce the will as it is written. 

^ Argument for Costa Rica, p. 333. 



We are concerned here only with a text, its interpretation and its application. 
We may have recourse to any of the ordinary guides to that interpretation and appli- 
cation, if anything doubtful or ambiguous be found in it, but beyond that we may 
not go. So far from a demonstration (if that could be made), that this text is insen- 
sible or incapable of application, clearing the way for a determination of the boundary, 
apart from it, the result would be that no boundary could be determined and that this 
Arbitration must be barren and end without any award. 

Thus, no part of the Argument submitted for Costa Eica is directed toward the 
only question involved on this arbitration, that is, the true boundary under the Loubet 
Award. It is entirely made up of argument to show that the Loubet Award is 
erroneous, void and unintelligible, that it should be disregarded and that the arbi- 
trator should fix a boundary without regard to it. The two alternative boundaries, 
one of which Costa Eica asks the Arbitrator to adopt, do not profess, even, to accord 
with the Award of President Loubet. What Costa Eica asks of the Arbitrator is that 
he shall wholly disregard and refuse to do what was submitted to him by the Con- 
vention of Arbitration, and that he do what the Convention gives him no authority to do. 

In the process of reaching this extraordinary and impossible result, the Argu- 
ment for Costa Eica finds it necessary to impugn and attack every person or body 
which has had to do with the subject since the original submission of the boundary 
question to President Loubet. That distinguished Arbitrator, the Commission which 
aided him in his task, the Commission of Engineers appointed on the present Arbitra- 
tion, the geologist of that Commission, are all alike attacked and criticized. All were 
in error, all failed in their duty. The results reached by none of them favor Costa 
Eica, therefore these results are all erroneous. 

But one conclusion is possible from this remarkable attitude on the part of Costa 
Eica and that conclusion is hardly denied. The Argument for Costa Eica is substan- 
tially a confession, that, while Costa Eica promoted this arbitration, she never had 
any doubt of the true meaning and application of the Loubet Award but used a pre- 
tended doubt in hope of wholly overthrowing it. 

What would have been her attitude had she been really in doubt as 
to the meaning and application of the Award ? Obviously and necessarily she would 
have endeavored to find a solution, and would, in her argument, have sought to show 
that her solution was in accordance with the Award. She would have wasted no time 
in idle historical reviews to demonstrate the erroneous character of the Loubet Award, 



nor in equally idle accusations against President Loubet and his commission, of 
ignorance and unfairness for having made such an Award. Still less would she have 
tried to make the Award void or unintelligible or have appealed to the Arbitrator to 
disregard the obligations of his high office, both by omission and commission ; by not 
deciding the question which he had consented to decide and by deciding a question 
never submitted to him. 

The fact could not be made plainer that, upon the real question submitted to the 
present Arbitrator, Costa Bica has nothing which she can say. There is not, and 
never has been, any doubt in anybody's mind as to the meaning and application of the 
Loubet Award, nor where the line described in that Award lies. Costa Kica has no 
more doubted than did Colombia or than does Panama. Indeed, the root of all the 
diflSculy is that she did not doubt. By no process of casuistry could she make that 
line really doubtful nor pretend that it could be drawn so that it would not deprive 
her of territory which she was determined not to lose or surrender. 

Though Costa Rica had pledged her national honor to accept the Award of Presi- 
dent Loubet, " whatever it may be," she preferred to break that pledge rather than 
give up what she must resign if she kept it. It will be seen more clearly, when we 
come to a full consideration of her argument, how unfounded are her objections to the 
Loubet Award. Her real objection was and is that which every defeated litigant has 
to the judgment entered against him ; but that objection she could not avow. 

Despite her solemnly expressed promise Costa Rica would not abide by 
the Award and has never, to this day, surrendered her hold upon territory 
to which, under that Award, she has no right. Finally, pressure from the 
United States compelled her to furnish some excuse for her conduct, and 
she pretended a difficulty as to the exact meaning and application of the 
Award. This led to the present Arbitration, but now Costa Rica substantially 
admits that the difficulty alleged was a mere pretense. She never had any doubt as 
to the meaning of the Award nor the line which it fixed ; she has no theory to pro- 
pose as to the true line under the Award ; she will not have the Award nor any line 
under it ; and what she asks is the discarding of the Award and the fixing of a new 
line to suit her. 

That, however, she cannot have. The question of the validity or correctness of 
the Loubet Award is not before the Arbitrator, nor is the question of the proper 
boundary, had that Award not been made, between Panama and Costa Rica. Into none 



8 

of these questions has the Arbitrator any occasion to inquire, nor could the answer to 
any of them afifect the Award which he is to make. Not only morally, as a matter of 
good faith, but strictly and legally, Costa Eica is bound by the present Convention to 
a complete acceptance of the Loubet Award. The line fixed by that Award is the 
only line which can be considered. 

It is curious circumstance, and one which may well cause doubt as to the serious- 
ness of the Argument which we are considering, that the treatment of the question 
which Costa Eica there attempts to make fundamental, is so summary. The Argu- 
ment is, indeed, voluminous, but a great part of it is taken up with the attempt to 
dissuade the Arbitrator from following the Loubet Award — the only thing he was 
asked or has consented to do. 

If it were possible for such an attempt to succeed and if it were conceivable that 
the Arbitrator should be willing to do as Costa Eica wishes and fix a boundary with- 
out regard to the Loubet Award, then he would have to consider de novo, the same 
question which President Loubet decided. Volumes were required to contain the 
arguments, and vast accumulations of documents and maps to furnish the proofs 
which Costa Eica thought it necessary to adduce before President Loubet. Here she 
submits some of these volumes of argument, which failed to convince President 
Loubet before, and some of the former maps and documents. Perhaps she produces 
them all (for Panama is not in a position to know what was presented to President 
Loubet). If she has done so she presents only what failed to satisfy him of the 
justice of her claims and her new argument upon this subject, long as it is, is but a 
fraction of one volume of the former arguments. It is apparent that, if Costa Eica 
expected the present Arbitrator to reverse the decision of President Loubet and reach 
a different result, she would have felt it necessary to produce more proof and more 
elaborate argument than she produced before. If, when there was no decision 
against her, so much was required, certaiuly far more would be required to induce 
an Arbitrator to reverse a decision, solemnly made after long study and examination. 
But substantially no more has been produced. 

This appears to us to show that, conscious of the fact that the present Arbitrator 
could not and would not depart from the Loubet Award and select another line 
than that designated therein, Costa Eica has never expected any such result. Her 
argument is not intended to convince nor to win an award. It is a mere form of 
argument which it was not worth while to elaborate, and its only real office is to 
cover the nakedness of Costa Eica's indefensible refusal to accept the Loubet Award. 



Therefore we have here a further proof of Costa Rica's real attitude and real 
thought. She has no doubt as to the line of the Loubet Award, therefore she does 
not discuss it, except in a futile effort (to which we shall refer later), to make it out 
to be unintelligible. She offers no theory as to the meaning of the Award at all, 
because only one construction is possible and that so plain as to admit no argument 
for any other, and to make her past conduct inexcusable. But in order to make the 
appearance of having some other ground for her course than a mere refusal to comply 
with an Award which she had bound herself to accept, she sets up this contention for 
a line different from that of the Award, and professes to support it by a relatively 
slight and summary argument. 

It is true that her position is sufficiently disclosed by the fact that she will not 
even attempt to discuss the only question before the present Arbitrator and confines 
herself to two questions not before him : the validity and the correctness of the 
Loubet Award. But the fact that, even upon these subjects, the argument is really 
only perfunctory, emphasizes the fact and shows the more clearly that Costa Rica has 
not and has never had any excuse for her breach of the Convention of 1886, and is 
merely endeavoring now to hide, by words, the flagrancy of that breach. 

It is noteworthy, and affects the whole contention of Costa Rica, that she does 
not seek to invalidate the Award in toto, but only in so far as it is not satisfactory to 
her. On the Pacific side the line of the Award is nearly as favorable to her as the 
line which she proposed. Punta Burica, the Pacific terminus of the line of the Award, 
is close to the mouth of the Chiriqui Viejo, which Costa Rica proposed as the end 
of the line on that ocean, but a considerable distance from the mouth of the Golfito 
which Colombia proposed for the same purpose ; and the line of the divide between the 
Chiriqui Viejo and the affluents of Golfo Dulce, from the cordillera to the ocean, fixed 
by the award, was very near that of the Chiriqui Viejo, proposed by Costa Rica, but 
very far from that proposed for Colombia. Therefore, Costa Rica accepts this part of 
the line of the Award, but seeks to repudiate so much of it as lies toward the At- 
lantic beyond Cerro Pando. Panama, of course, acquiesces in this acceptance, 
because she maintains the absolutely binding validity of the whole line of the Award, 
but asserts that that whole line, in its entirety, must also be accepted. 

The line from Cerro Pando to the Pacific was not accepted by Panama as a line 
entirely satisfying her aspirations nor as a line adopted as a compromise, but simply 
and solely as the line of the Loubet Award. It was accepted because Panama, as the 



10 

successor to the obligations as well as the rights of. Colombia concerning this 
boundary, is resolved to respect those obligations and to accept, without question or 
debate, the Award of President Loubet, to which her national honor as well as that 
of Costa Rica is pledged. 

If it were to be said that Costa Rica's attitude involves, not a repudiation of the 
Award but its modification, and that she may therefore accept such parts of it as in 
her opinion need no change, the answer is that an attempt by her to obtain a revision 
or amendment of the Award would involve a breach of her treaty with Colombia no 
less flagrant than an attempt to repudiate it. 

Article IV. of the Convention of 1896 provides : 

" The award of the Arbitrator, no matter loJiat it may he, shall be consid- 
ered as a perfect and binding treaty as between the High Contracting Parties, 
and shall not admit of any appeal. Both Parties bind themselves to its 
faithful fulfillment, and they waive ajiy appeal against the decision, pledging 
thereto their national honor." 

If Costa Rica could be considered as not repudiating the Award, her conduct in 
calling for a revision of it would be precisely that appeal against it of which both 
parties agreed that it should not admit, which both waived, and which both pledged 
their national honor not to take. 

Colombia and Panama have steadfastly kept this engagement, though President 
Loubet denied Colombia a vastly greater amount of her claim than he did Costa 
Rica. If Costa Rica be considered now as appealing to the present Arbitrator to 
alter the Award of President Loubet, she stands in the position ;_of openly violating 
her treaty engagements no less than by wholly refusing to be bound by the Award 
at all. 

Nor would the present distinguished Arbitrator be authorized to review, amend 
or correct the Award without the express revocation, by agreement of the parties, of 
this provision of the Convention of 1896. 

It cannot be contended that the Convention of 1910 had any such effect. On the 
contrary that Convention is based upon the complete acceptance of the Loubet Award 
according to its "correct interpretation and true intention." That Award, as it 
stands, is the unchangeable standard to which any line fixed upon this arbitration 
must conform. 



11 

The convention of 1896, therefore, haying declared that the Award made under 
it " shall not admit of any appeal," and that provision being still in force, not modi- 
fied nor abrogated, it would not be in the power of any Arbitrator or tribunal to 
entertain or consider an appeal from it, even if one of the parties so far disregarded 
its agreement as to take an appeal which it had formally waived. The effect of the 
provision quoted is to make the Award itself incapable of revision or modification. 

It is as if, in litigation between private persons, an appeal were taken from some 
decision from which, by law, no appeal lies. The court to which the appeal is taken 
will refuse to consider it because the nature of the decree is such that no appeal 
from it can be allowed. So, here, an immunity from review is inherent in the Loubet 
Award and until, by the plain agreement of the parties, that provision be changed, no 
appeal against it can be entertained anywhere. 

We shall consider, later, the functions and jurisdiction of the present Arbitrator 
under the Convention of 1910. What we say now, is that, the parties having never 
agreed to an abrogation or modification of the provision of the Convention of 1896 
to which we have referred, any action which should amount to entertaining an appeal 
against the Award cannot be taken. 

We find, then, that the Argument for Costa Rica is confined to appealing to 
the Arbitrator for relief against the Award, when, by the very terms of the 
convention under which the Award was rendered, it admits of no 
appeal. We find, further, that so far from proposing any line as according with the 
Loubet Award, the Argument contends that no line can be drawn under it, because the 
Award, besides being void for ultra petita and other defects, is insensible and impos- 
sible to reconcile with the real geographical situation. 

Therefore, as we have already said, the whole argument is irrelevant to the only 
question before the Arbitrator, namely, what is the boundary " under and most in ac- 
cordance with the correct interpretation and true intention " of the Loubet Award ? 
Costa Eica's first contention is that the question cannot be answered, because the 
Award fixes no line. The only result of this contention, could it have any effect and 
were it well founded, would be the complete failure of this arbitration. 

Costa Eica then goes further and asks the Arbitrator to answer a question not 
submitted to him, namely, what should President Loubet have decided to be the 
boundary ? That is the same thing as asking the present Arbitrator to consider, 
de novo, the question which President Loubet decided, except as to that portion of the 



12 

boundary which lies between Cerro Pando and the Pacific. Thus, as we have said, 
she asks the Arbitrator not to do what, under the Convention, he was chosen and has 
consented to do, and to do what he has not been asked nor consented to do. 

This involves such a misconception of the scope of this Arbitration as 
argues not merely a misconstruction of the terms of the Convention 
which is incomprehensible, but a lack of acquaintance with the history of its 
making and the discussions and correspondence which preceded it, which 
it is as difficult to understand. It becomes necessary, therefore, to 
consider this vital preliminary question first and to point out how impossible it 
is that either the request of Costa Rica to disregard the Loubet Award or to fix a 
boundary difi'erent from that which it describes, should be entertained by the 
Arbitrator. 

The Scope of the Peesent Aebitration. 

We submit, witli the present argument, an argument prepared by His Excellency 
Dr. Belisario Porras, now President of Panama, when he was Minister of Panama 
at Washington, at the opening of this Arbitration, and which we respectfully request 
may be taken as a part of this argument. It deals exhaustively with the question of 
the scope of this arbitration. We have already, in connection with ou.r first statement, 
submitted some of the documents to which Dr. Porras refers and we submit others in 
a separate compilation which also include the letter from the Minister of the United 
States at Panama to the Secretary of State of that Republic, dated January 2d, 
1909, with the copy of cablegram from the Secretary of State of the United 
States enclosed with that letter and the cablegram of the United States Minister 
at Panama in answer thereto ; the letter of the Secretary of State of the United 
States to the Minister of Panama at Washington, dated November 2d, 1909 ; the 
letter of the Minister of Panama to the Secretary of State, dated February 21, 
1910 ; and the memorandum of the same Minister to the Secretary of State, dated 
March 10th, 1910. 

These further documents, not necessary at the time when Dr. Porras prepared 
his argument, it becomes desirable to introduce in view of certain statements in the 
Argument for Costa Rica which they will serve to correct. 

To the argument of Dr. Porras concerning the proper construction of Article I of 
the Convention of Arbitration there is nothing to add. We believe that, as we have 



13 

said in our first Statement, its meaning is perfectly clear and involves the absolute 
acceptance of the Loubet Award, by both parties, as binding upon both and not to be 
impeached, for any defect of ultra petita or otherwise, even if any such existed. 

But clear as is this meaning, from the language of the convention, its certainty is 
further reinforced by the other documents in the course of the negotiations leading 
to it. 

By the cablegrams annexed to the letter of the American Minister at 
Panama to the Secretary of ■ Foreign Affairs of Panama, of January 2d, 1909, it 
appears that Costa Rica then proposed that two questions be submitted on this 
arbitration : First, the validity of the Loubet Award ; Second, if it be found valid, its 
meaning and through what points the line under it should be drawn. It also appears 
that Panama categorically refused to submit the validity of the Award to arbitration, 
but expressed willingness to arbitrate its meaning and the exact location of the line 
under it. 

It further appears, from the other documents submitted, that Panama never 
wavered in this position, but made it the condition sine qua non of arbitration at all, 
that the absolutely binding force of the Loubet Award should be admitted. Even the 
Department of State of the United States was induced to urge upon Panama that she 
consent to broaden the scope of the arbitration so as to inclnde, if not the validity of the 
Loubet Award, at least its correctness, and make possible a modification of it, should 
a case for such modification be shown. But the Goverment of Panama declined to 
accede to this suggestion, which it was, constitutionally, without power to accept 
(since the Constitution of Panama makes the line of the Loubet Award, the boundary 
of the Republic), and refused to arbitrate any question but the interpretation and 
application of the Loubet Award as it stood and without modification. 

By the identic Memorandum addressed to the Special Representatives of the two 
Republics by the Secretary of State of the United States on March 1st, 1910, to 
which the Argument for Costa Rica refers, the position of Panama was accepted and 
adopted and the question for arbitration was formulated, much in the form ultimately 
adopted, except in one respect. 

The question as suggested by the Secretary of State was as follows : 

" What is the boundary between the Republics of Panama and Costa 
Rica under and most in accordance with the true interpretation and correct 



14 

intention of the Loubet Award in the light of all the historical, geographical, 
topographical and other facts and circumstances surrounding it as well as 
under the established p?'inciples of international law." 

As actually embodied in the ConTention this was modified so as to read : 

" What is the boundary between Panama and Costa Rica under and 
most in accordance with the correct interpretation and true intention of the 
Award of the President of the French Republic made the 1 1th of September, 
1902? 

In order to decide this the Arbitrator will take into account all the 
facts, circumstances and considerations which may have a bearing upon the 
case, as well as the limitation of the Loubet Award expressed in the letter of 
His Excellency Monsieur Delcasse, Minister of Foreign Relations of France, 
to His Excellency Senor Peralta, Minister of Costa Rica in Paris, of Novem- 
ber 23, 1900, that this boundary line must be drawn within the confines of 
the territory in dispute as determined by the Convention of Paris between 
the Republic of Colombia and the Republic of Costa Rica of January 20, 
1886." 

It is said in the Argument for Costa Rica that the parties agreed subsequently 
that these two forms are equivalent, but this is a complete error, due, no doubt, to 
lack of familiarity with the history of the question and the documents concerning it. 

Not only are the two forms not equivalent, but the differences between them are 
important and intentional and are due to Panama's refusal to accept the form origin- 
ally proposed. 

In his memorandum to the Secretary of State of March 10, 1910, the Special 
Representative of Panama said : 

" It is with great satisfaction that the undersigned notes the recognition 
by the Secretary of State of the force and validity of the reasons which re- 
quire the Government of Panama to insist upon a strict adherence to the 
Loubet Award as a necessary prerequisite to any arbitration to which that 
Government can constitutionally be a party. 

" It is the understanding of the undersigned, from the memorandum to 
which reference is made, that this attitude is accepted as the necessary basis 
for any further proceeding, and with this in view, the undersigned begs to 
submit the following additional views and considerations upon the subject 
of the memorandum." 



15 
And also : 

" With respect to the question to be arbitrated, the undersigned be- 
lieves that that question would be accurately stated as follows : ' What is the 
boundary between the Eepublica of Panama and Costa Rica under and in ac- 
cordance with the correct interpretation and true intention of the Loubet 
Award ' ? 

" The arbitrator will, undoubtedly, in the course of his examination of 
this question, take into account all the circumstances and facts which may, 
in his view, properly have a bearing upon his decision, but the undersigned 
submits that the enumeration suggested of the considerations which the arbi- 
trator shall take into account votild extend the scope of the arbitration beyond 
the determination of the question of fact, to-wit, the exact location of the line as 
fixed by the award, which is all that has been proposed, and might lead to a 
departure from or modification of the Loubert Award, which the undersigned 
does not understand to be within the scope of the proposed arbitration and to 
which it would be beyond the power of the undei'signed or his Government to 
agree, for the reasons heretofore given." 

It will be noted that the question itself is, in the convention, expressed exactly 
as was suggested in this letter, and the part which we have italicized in the form pro- 
posed originally by the Secretary of State of the United States, omitted. 

It will also be noted that, so far from the reference to the matters 
which the Arbitrator is to take into account, as stated in the conven- 
tion, being the equivalent of what was omitted from the form of the ques- 
tion as originally proposed, the reverse is the case. The omission was 
due precisely to the fact that the words omitted were objectionable and that 
a change in meaning was required, and that change consisted precisely in 
eliminating these words, in framing the question as it now stands in the convention, 
and in stating the matters to be considered by the Arbitrator in the form desired by 
Panama. 

The letter to which we refer also contains the following : 

" Since the acceptance of the Loubet Award must form the basis of the 
arbitration, the convention of arbitration, it is respectfully submitted, should 
in first place, stipulate anew that acceptance by both parties, and should 
state that the object of the arbitration is confined to the interpretation and 
application of the Loubet Award. It being understood as a part of that 



16 

award, as expressed in the letter of M. Deicass^ to Senor de Peralta, Minister 
of Costa Eica at Paris, November 23, 1900, ' that, in conformity with the 
terms of Articles II and III of the Convention of Paris of January 20, 1886, 
this boundary line must be drawn within the confines of the territory in dis- 
pute as they are determined by the text of said articles." 

By this it appears that the inclusion of the letter of M. Delcasse to Sefior de 
Peralta in the enumeration of the matters to be taken into account by the Arbitrator 
was at the request of Panama and that the statement in the Argument for Costa Rica 
that it was the latter republic who requested it is another error. 

By all these documents and by the argument of Dr. Porras it is made clear that 
not only will not the terms of the present convention admit of such construction as 
will make the validity or correctness of the Award subjects within the scope of this 
Arbitration, but that this language was adopted precisely to that end and that the 
exclusion of these subjects was deliberate and intentional. 

Costa Rica formally requested that the validity of the Loubet Award be one of 
the questions submitted to the Arbitrator ; Panama refused, and Costa Rica receded 
from her position. Panama insisted " upon a strict adherence to the Loubet Award 
as a necessary prerequisite to any arbitration" And. that the convention should be so 
immed thai " the object of the arbitration is confined to the interpretation a7id applica- 
tion of the Loubet Aiuard ; " and Costa Rica acquiesced. 

After all this for Costa Rica to ask the Arbitrator to consider and determine 
matters which were thus definitely and finally, after consideration and debate, ex- 
cluded from this Arbitration, is impossible. The language of the convention does 
not permit it, but even if it were capable of a construction which would bring 
before the present Arbitrator the validity or correctness of the Loubet Award, 
or anything else except the interpretation and application of that Award, the 
result would be equivalent to a breach of faith with Panama. She would have been 
led into the discussion of questions which she has refused to discuss, to put in arbi- 
tration matters which she refused to arbitrate, Costa Rica's acceptance of her terms 
for this Arbitration Avould become a mere trick to entrap her, and her government 
would be put in the position of violating the provisions of her Constitution. 

Happily no such result is possible. Neither Panama, who made the Convention, 
nor the United States, under whose auspices it was made, were so careless or inept as 
to leave any opening for such a stratagem, were it attempted, to avail. The language 



17 

of the convention is too precise and definite to admit of the possibility of raising, 
under it, any question of the validity or correctness of the Loubet Award, or any 
other question except as to its " correct interpretation and true intention." Its per- 
fect correctness and absolute validity cannot, under this convention, be for a moment 
questioned. 

We must assume that the learned representatives of Costa Rica were not aware of 
the negotiations and communications preceding the actual conclusions of the Conven- 
tion to which we have referred. The present counsel for Panama had the honor of 
collaborating in the negotiation and formulation of the Convention of 1910 and 
the present counsel for Costa Rica had not that opportunity of becoming personally 
familiar with the circumstances attending the making of that Convention. Had they 
been so, good faith would, undoubtedly, have precluded their endeavoring, even, to 
enlarge the scope of this Arbitration so as to include matters which it was expressly 
intended to exclude, or to compel Panama to submit for adjudication subjects which 
she had made it a condition of her entering the Arbitration at all, should not be sub- 
mitted. 

We must also suppose that, in view of these negotiations and communications, 
Costa Rica will not persist in her request that the Arbitrator disregard the Loubet 
Award or that he modify it or fix a boundary without reference to it. Whatever her 
view is as to the possibilities of interpretation of the Convention (and we believe that 
it is clear that these possibilities do not include any such range of questions) good 
faith will prevent any further attempt to carry it so far. 

It is, therefore, we believe, conclusively demonstrated, -first, that upon this Arbi- 
tration neither the validity nor correctness of the Loubet Award can be questioned 
and, second, that the sole question before the Arbitrator is to define the line which 
that Award, correctly interpreted, fixes. 

" Ultra Petita." 

While the objection of ultra petita, made by Costa Rica to the Loubet Award, 
cannot be considered, upon this Arbitration, in so far as it is meant to impair 
the validity of the Award as a whole, it might, nevertheless, if well founded, have a 
bearing on the result of the Arbitration . 

By the Convention the Arbitrator is to take into account the limitation of the 
Loubet award, expressed in the letter of M. Delcass6 to Senor de Peralta, " that this 



18 

boundary line must be drawn within the confines of the territory in dispute as deter- 
mined by the Convention of Paris between the Republic of Colombia and the Eepub- 
lic of Costa Eica of January 20, 188G." 

If it were true that the line as awarded by President Loubet lay, in any part, 
outside the confines of the territory determined by the Convention of 1886, while his 
Award could not be considered as at all invalidated by that fact, it might afifect the 
exact location, by the present Arbitrator, of some part of the line, in fixing a bound- 
ary which should agree with the true intention of the Award. 

Such a situation, however, does not exist, as we pointed out in our first statement 
for Panama, and an examination of the grounds upon which the Argument for Costa 
Eica bases the contention that it does, demonstrates the fact with particular clearness. 

The argument for Costa Eica, on this point rests upon two distinct grounds : 
jimt, that some of the territory awarded by President Loubet to Colombia had never 
been in dispute and was the unquestioned property of Costa Eica, which Colombia 
had never even claimed ;i second, that in a printed argument presented to President 
Loubet on behalf of Colombia, Dr. Silvela, one of Colombia's advocates, had proposed 
a line which would not give her the extreme upper portion of the valley of the Sixa- 
ola or Tarire, all of which valley President Loubet awarded to Colombia.* 

We have already noted that these contentions involve an admission that the 
Award is clear and intelligible and that the line fixed by it is precisely that which 
Colombia always maintained and which Panama still maintains. It is impossible to 
say that an unintelligible award or one impossible to reconcile with the geographical 
features of the country, shows the defect of ultra petita. If it cannot be determined 
what it awards, it cannot be maintained that it awards too much. Nor, if it be not 
clear that the " true intention " of the Award was to give to Colombia the whole valley 
of the Sixaola or Tarire, can it be said that it was erroneous in awarding it. Therefore 
these contentions of Costa Eica necessarily involve, as a glance at any map will show, 
a concession that the line of the Award is the line which Panama maintains. 

But even accepting, as Panama does, this concession on the part of Costa Eica, 
the conclusion of ultra petita by no means follows, but is manifestly wholly 
unfounded. 



' A.rgument for Co3ta Rica, pp. 339-332. 
' Ibid pp. 365, 367, 376. 



19 

Upon the first of Costa Eica's grounds for asserting ultra petita we must note 
that, in the first place, it is based upon a misquotation, several times repeated, of 
M. Delcass^'s statement. He is quoted as saying that " the line must be drawn 
within the confines of the territory in dispute," but, in the quotation, his phrase is 
cut off there and its full meaning is not expressed. ^ " The territory in dispute 
as determined iy the Convention of Paris betiveen the Republic of Colombia and the 
Republic of Costa Rica, of January Wth, 1886" was the expression of M. Delcasse ; 
and it does not lend itself to the argument for Costa Eica on this point. 

Upon this incomplete version of M. Delcasse's statement it is argued for Costa 
Eica that it may be shown, aliunde, what territory was, in fact, in dispute, and thus 
the jurisdiction of President Loubet as an Arbitrator may be limited to that territory, 
and his Award impeached or limited, if it go beyond it. 

We can hardly think that such an argument is made seriously, nor that it calls 
for serious refutation, easy as refutation would be. In this form, it is enough to say 
that the argument lacks all relevancy because it is based upon an imperfect quotation 
of M. Delcass^, and a correction of the quotation destroys the argument. 

The Argument for Costa Eica goes on, however, to consider the effect of the 
definition of the territory in dispute contained in the convention of 1886. By that 
convention it is stated, by way of defining the territory in dispute, that 

" Article II. 

" The territorial limit which the Eepublic of Costa Eica claims, on the 
Atlantic side, reaches as far as the Island Escudo de Veragua and the Eiver 
Chiriqui (Calob^bora) inclusive ; and on the Pacific side, as far as the Eiver 
Chiriqui Viejo, inclusive, to the East of Point Burica. 

The territorial limit which the United States of Colombia claims 
reaches, on the Atlantic side, as far as Cape Gracias d Dios, inclusive ; and 
on the Pacific side, as far as the mouth of the Eiver Golfito in Gulf Dulce." 

"AETICLE III. 

" The arbitral award shall confine itself to the disputed territory which 
lies within the extreme limits already described ". * * * 

The argument for Costa Eica is not clear on this point. In part it is made up 
of arguments that Colombia could not have had any valid claim to territory as far as 

1 Argument for Costa Rica, pp. 177, 182. 



20 

Cape Gracias A Dios or, if she had, it could have been only to the shore, and 
not even to that, below the northern boundary of Costa Kiea ; in part by attempts 
to draw fanciful lines between the terminal points mentioned in the convention of 
1886, and contentions that the mention of these points involved these lines ; and in 
part by arguments, of the same sort as those used in connection with the incomplete 
quotation from M. Delcass^, that if it be shown, aliunde, that any of the territory 
within the limits named in the convention of 1886 had not been a subject of dispute, 
such territory would be outside the scope of President Loubet's jurisdiction and any 
boundary entering it would involve ultra petita. 

With the first of these classes of arguments we have nothing to do. The merits 
of Colombia's claims are not to be discussed here. Colombia and Costa Eica 
submitted the boundary between them to the arbitration of President Loubet by a 
convention which defined their respective claims as fully and accurately as they 
deemed necessary. "What led to the particular definition is now wholly immaterial, 
and equally so is it, what basis there was for the claims on either side. We do not 
suppose that any argument based on supposed historical matter anterior to the 
convention of 1886 can be seriously intended, upon the question of the scope of that 
arbitration. That must be determined by that convention alone. It is express in 
its terms, it is the only rule of the case, and it is not to be conceived that any one 
supposes that its provisions can be changed in meaning or efi^ect by any extraneous 
matter whatever. We decline to go into any discussion of the nature or basis of 
Colombia's claim reaching to Cape Gracias k Dios, whether it was well or ill 
founded, whether it ought to have related to the whole country or only to the coast, 
or any other matter concerning it. Such a discussion must necessarily be idle and 
can have no bearing, even the remotest, upon the case in hand. 

The argument for Costa Bica contends constantly, with much detail of 
historical matter in support of the contention, that at no time has there been any 
question of Costa Eica's undoubted right to all territory on the left bank of the 
Sixaola and of the Yorquin, that Colombia never, at any time, asserted any claim to 
any of that territory and that, consequently, no territory beyond the Sixaola could 
ever have been " territory in dispute " within the meaning of the Conventions under 
which President Loubet acted. i 

Argument for Costa Rica, pp. 238, 357, 269, 343-360. 



21 

To all this there is one conclusive answer which no historical learning or re- 
search is needed to discover and which no such learning or research can overthrow. 
It is found in Article II. of the Convention of 1886, already quoted, and is contained 
in these words : 

" The territorial limit which the United States of Colombia claims 
reaches, on the Atlantic &.ide, as far as Cape Gracias d Dios." 

That was the limit fixed by the Convention of Arbitration for the claims of Co- 
lombia. Cape Gracios d Dios lies, as we have already noted, far north of the 
northern boundary of Costa Eica. Therefore Costa Rica entered upon the arbitra- 
tion before President Loubet knowing that Colombia claimed her entire Atlantic 
littoral and an undefined territory in the interior. The line proposed by Senor 
Silvela was strictly within this claim. Whether that line was the correct boundaiy 
or not, it did not go beyond the territory the right to which Costa Eica had con- 
sented to submit to arbitration. The Award of President Loubet is likewise within 
the territory which is all, necessarily, " territory in dispute ". Yet Costa Eica now 
attempts to maintain that, though she joined in submitting to President Loubet the 
title to all territory on the Atlantic side up to her northern boundary, he exceeded 
his power by fixing a boundary a few miles beyond the Sixaola ! 

If, in fact, no territory beyond the Sixaola was ever in dispute and no Award 
going beyond that river could be made, why was not the Sixaola named as fixing the 
extreme limit of Colombia's claim ? Why was Cape Gracias A Dios named if there 
was no " territory in dispute " beyond the Sixaola ? There is no answer to these 
questions. 

The fact is that Colombia's claim did include most of the Atlantic side of Costa 
Eica, with all its littoral, and Colombia, evidently, insisted that her entire claim 
should be included in the Arbitration. Had Costa Eica been unwilling to allow this 
claim to be considered, she should, and undoubtedly would, have insisted that the 
Convention be so limited as to exclude it. Had she been unwilling to consider any 
lands beyond the Sixaola as " territory in dispute ", she would not have con- 
sented to arbitrate any claim of Colombia which went beyond that river. 
But she did. She accepted a convention which authorized the Arbitrator as 
much to pass upon her title to the left bank of the Sixaola as to the right ; to 
lands between the Sixaola and her northern frontier as much as to the lands between 



22 

the Sixaola and the Chiriqui. Now, when the Arbitrator has awarded to the other 
party territory beyond the Sixaola, she cannot say that he exceeded his powers. She 
could not say so had he awarded her whole Atlantic littoral to Colombia. 

But even so much argument is more than is necessary. There are the words of 
the Convention of 1886 and they are a conclusive answer to the contention of Costa 
Eica. They are the law of the arbitration before President Loubet, and Costa Eica 
cannot be heard to say that he could award Colombia nothing beyond the Sixaola, 
when she went before him and joined in asking his award upon a claim of Colombia 
which found no limit until it reached Cape Gracias i Dios, save that no territory of 
any third power could be awarded. 

The second of the points discussed for Costa Eica is also one which does not justify 
discussion. No interior lines connecting the extreme points of the respective claims, 
in the Convention of 1886, are specified in that convention, and that is conclusive of 
the matter. No one can supply what the Convention omitted. If we were to con- 
jecture, we should naturally suppose that neither party was willing to commit itself 
to any internal line. But no one is at liberty to conjecture. The fact is that the 
two coimtries restricted President Loubet only as to four extreme terminal points 
and left him absolutely free in every other respect. To attempt to fancy internal 
lines which were never mentioned nor suggested in that Convention is a proceeding 
too futile to be considered. 

We come, then, to the third of the points argued for Costa Eica, namely, that by 
showing that Costa Eica had held undisputed possession of territory within the 
limits specified in the convention of 1886, it would be shown that such territory was 
not within the scope of .President Loubet's jurisdiction and so the award, by him, of 
any line which lay in such territory, would constitute an extralimitation of his 
powers. 

As little as the argument for Costa Eica upon the other two points, can this be 
taken seriously. 

If the convention of 1886 had, like that of 1880, contained no definition of the 
claims of either party, it would be obvious that President Loubet would have been at 
liberty to set the boundary wherever he should think fit. No location of it could be 
ultra petita. When the convention of 1886 stated the extreme claims of the parties, 
upon either ocean, and provided that the Award should be confined " to the disputed 
territory which lies within the extreme limits already described," it imposed upon the 



23 

Arbitrator the limitation which it stated, and no other. It declared, further, by 
that act, that all the territory between these limits was disputed territory. There- 
fore, as we have pointed out in our first Statement, if President Loubet fixed, as he 
did, a line, the Atlantic terminus of which lay between the month of the River Chiri- 
qui and the northern boundary of Costa Eica, and the Pacific terminus of which lay 
between the mouth of the Chiriqui Viejo and that of the Golfito, he could not exceed 
his powers as to the territory in which the line ran. Such a line must be within the 
disputed territory as defined by the Convention of 1886. 

To contend, now, that this definition of the Convention of 1886 was no definition, 
that this statement of the claims of the respective parties meant nothing, and that the 
real limitation of the Arbitrator's jurisdiction was to territory not defined in the Con- 
vention nor anywhere else, so that it would be impossible to know, with certainty, 
when the Award had been made, whether it was valid or not, is so beyond the scope 
of rational argument that we cannot suppose the contention serious. 

If it be so, it is sufficient to point out that the Convention of 1886, and that 
alone, is the measure of President Loubet's powers, and that, if there could be any 
question under it as to what was " territory in dispute," that would necessarily be a 
part of the subject for arbitration submitted to him, and his finding, upon that point, 
necessarily involved in the determination of the boundary, would, therefore, be con- 
clusive. 

Evidently, as is shown by the line proposed by Dr. Silvela for Colombia, upon 
the arbitration before President Loubet, which forms the second ground upon which 
Costa Rica seeks to maintain her objection of ultra petita, Colombia was far from ac- 
cepting the view which Costa Rica now asserts. That line, if adopted by President 
Loubet, would have awarded Colombia a vastly greater amount of territory which the 
present contention of Costa Rica would exclude from the former arbitration, than that 
which gives rise to her present complain t 

If, then, there were any possibility of admitting Costa Rica's contention as to 
" territory in dispute " under the Convention of 1886, it is plain that there was no 
agreement as to the actual territory within that designation. Therefore President 
Loubet must have decided what was " territory in dispute " under the Convention of 
1886, in order to be able to determine the boundary. There would then have been 
two questions before him : first, within what territory was he at liberty to draw the 
line ; and, second, what line should be drawn. His decision would be as binding on 



24 

the one point as on the other. An error, if any there were, in his conclusion upon 
either, could not involve ultra petita. 

But this whole contention of Costa Eica is utterly inadmissible. It is contrary 
to every principle of law and reason and does not deserve so much consideration as 
we have given it. The convention of arbitration is the sole measure of the jurisdic- 
tion of an arbitrator and limitations not clearly and definitely expressed in it, do 
not exist. 

The construction of the Convention of 1886 now set up by Costa Eica would 
turn the whole arbitration before President Loubert into a farce and would make that 
Convention a mere trap both for that distinguished arbitrator and for Colombia. 
If by such methods the results of international arbitrations could be nullified, they 
would soon cease. 

The second ground upon which Costa Eica bases her assertion that there is a 
defect of ultra petita in the Loubet Award is, if that be possible, of even less sub- 
stance than the first. 

It is that Dr. Silvela, in his argument for Colombia, before Presidet Loubet, 
proposed a line which, starting on the Pacific at the mouth of the Golfito, ran, in its 
first course, in a straight line to a point beyond the Tarire or Sixaola, and so inter- 
sected that river in its upper course and left the extreme upper part of its valley 
to Costa Eica. By the Silvela line all the Atlantic littoral occupied by Costa Eica, 
and a great part of the interior, would have been awarded to Colombia. The Loubet 
Award wholly disregarded this line, but did award the whole valley of the Tarire or 
Sixaola to Colombia. Thus the extreme upper end of that valley, which would have 
been awarded to Costa Eica, had the Silvela line been adopted, was, in fact, awarded 
"to Colombia. Costa Eica now contends that such an award gave Colombia terri- 
tory which she conceded to belong to Costa Eica, because the line proposed by 
Dr. Silvela would have left it to her, and that, therefore, to award it to Colombia was 
ultra petita. 

Again we find it diflicult to suppose the argument to be seriously made. 
The powers of an arbitrator, as we have already said, are determined by 
the convention under which he acts and by that alone. This is elementary. To 
suppose that they can be modified, abridged or restricted by mere passages in the 
argument of an advocate of one of the parties before him is a notion so extraordinary 
that its mere statement should be its suflScient refutation. No concession, if any 



25 

were made in such an argument, could bind the Arbitrator nor lessen his authority or 
jurisdiction. Within the limits of the convention under which he acts he is supreme. 
Neither by claim nor concession is it in the power of any advocate of any party to 
lessen his authority. 

Nor is it possible to say that Dr. Silvela's line involved any concession of Costa 
Kica's absolute right to the upper end of the valley of the Tarire or Sixaola. He 
proposed the line which he thought the proper one and which, if adopted, would have 
given her that territory, but that, in its nature, was necessarily conditioned upon 
the acceptance of his line as a whole. 

His line not having been adopted at all, he would have been quite entitled to 
urge a different method of solving the boundary problem (had he the opportunity) and 
he would not have been debarred from proposing one which should give Colombia 
the whole valley by the fact that his first proposal left a small portion of it to Costa 
Eica. Not even Dr. Silvela himself would be thought inconsistent in such a course. 
The Arbitrator did not adopt his line in any part, and it would be absurd to say that 
he could not award what he found to be the true line, because the parties would 
thereby get, respectively, in some places more and in some places less than Dr. 
Silvela's line would have given them. 

Even could Dr. Silvela's description of the boundary which he proposed be held 
to involve an admission as to the ownership of any part of the territory in question, 
and to have any binding force, it would be only an admission. That is, it would be, 
at most, but proof from which President Loubet might have found the right of Costa 
Bica to the territory north and west of that line to be conceded by her adversary. 
Even if it were conclusive proof, the action of President Loubet, in not giving it due 
effect (had such been the case) would have been, at most, an error, but would have 
had nothing to do with ultra peiita. It would have been like any other error which 
an arbitrator may commit in not giving due weight to proofs advanced. This error is 
wholly different from ultra peiita. That is a question of exceeding his mandate and 
deciding matters not submitted to him ; this would be an error in not correctly decid- 
ing matters submitted to him. The one, under some circumstances, might affect the 
validity of his award ; the latter can never do so. There is no error of any sort in 
this case, but had there been any in respect of any conclusions it could never have 
been in the way of departure from, but only in the manner of exercising the Arbi- 
trator's powers. 



26 

But it is hardly necessary to dwell longer upon this point. The Argument for 
Costa Eica rests upon the fundamental fallacy that it assumes that arguments of an 
advocate can restrict the powers of an arbitrator and prevail over the provisions of a 
convention between two nations. It would have no force, even were this conceded, 
but this basal error makes it needless to examine it further. 

Thus, we believe, it is apparent that the objection of ultra petiia to the Loubet 
Award is wholly unfounded. President Loubet is not open to the charge of having 
exceeded his mandate. His Award conforms exactly to the terms of the submission 
to him. The line which he described is drawn wholly within the disputed territory 
as defined in the Convention of 1886, and he is open to no criticism as having, in his 
decision, in any way gone beyond the question which Colombia and Costa Rica asked 
him to decide and his decision upon which they pledged their national honor to 
accept and fulfill. 

The Con-tention That the Loubet Award is Insensible and Inapplicable. 

As we have said, if the fact were that the Award of President Loubet were insen- 
sible and inapplicable, so that the true boundary awarded by it could not be deter- 
mined, there would be an end of this Arbitration. To propose a line not that de- 
scribed in the Award is not within the functions of the present Arbitrator. 

This precise question arose in the arbitration between Great Britain and the 
United States of the northeastern boundary between their territories under the treaty 
of 1782-83, before the King of the Netherlands. The arbitrator found it impossible 
to determine the question or to decide which of the lines proposed by the two parties 
■was most in accordancewith the treaty, and therefore proposed a line himself. His 
award was rejected as uli?'a petiia, because he had been requested, not to fix a 
line himself, but to determine the meaning and application of the treaty with respect 
to the boundary.! 

In this case, therefore, if the contention of Costa Rica, that no boundary can 
be determined as that intended by the Loubet Award, could be maintained, that 
would be the conclusion of the matter. Costa Rica's request that the Arbitrator go 
on and fix a line himself could not be granted. For the Arbitrator so to do would 

be ultra petiia. 

1. 7 Moore, Dig. Int. Law 59 ; 1 Moore, Int. Arb. 137-138. 



27 

No occasion for such a question can, however, arise. The attempt to show the 
Award insensible or inapplicable is, perhaps, the least well founded of all the con- 
tentions of Costa Kica. At any rate, it is, we venture to say, totally without support 
in reason. 

Here again we note that, as in so many other instances, the Argument for Costa 
Eica is inconsistent and self-contradictory. 

The greater part of that argument assumes, without diflBculty, that the Award 
is clear and the boundary described in it, plain. 

The whole argument for ultra petita rests upon and, with full definition, under- 
takes to show exactly what territory under the Award would fall to Panama, and is 
based upon an elaborate attempt to demonstrate that some of this territory had been 
the undisputed property of Costa Kica. i To do this the Argument examines the 
history of government and settlement upon the left bank of the Sixaola or Tarire, 
demonstrates that the Award gives the whole valley of that river to Panama, in- 
cluding the subordinate valleys of all its tributaries, and including also the extreme 
upper end of the valley, of a pointed shape, which the Argument repeatedly calls 
" the dagger of the Award ".* The whole of so much of the argument on this point 
as rests upon the line proposed by Dr. Silvela would lose all meaning unless it were 
plain that, under the Award, this region belongs to Panama. 

The same course of reasoning is employed by Costa Rica to show that the 
Award is erroneous and unjust. The history of the whole region is discussed at length 
and it is pointed out wherein the injustice alleged consists and exactly what territory 
is improperly, in Costa Rica's view, given, by the Award to Colombia.* 

All these contentions, whatever their merit or lack of merit otherwise, fall at 
once to the ground, the moment it is asserted that the Award is insensible or 
incapable of application. If it be true that the Award cannot be so construed as to 
disclose a clear meaning or that its meaning is such as does not fit and cannot be 
intelligibly applied to the actual geographical situation, then there can be no ultra 
petita and no injustice. If it be impossible to fix any boundary under the Award, 
then it cannot be said that the boundary intended by it is, on any ground or for any 
reason, improper. 



1. Argument for Costa Riea pp. 264. 269-370. 

2. lUd, pp. 267, 274, 275, 334. 

3. Ibid pp. 335-860. 



28 

Nor are these objections of Costa Eica such as can stand together. The objec- 
tions of ultra petita and injustice might be consistent with each other. That is, 
Costa Eica might maintain at once that the Award is invalid and that, if valid, it is 
nnjust. But she cannot maintain that it is both unmeaning and unjust. If unjust, it 
must have a plain meaning ; if unmeaning, it cannot be unjust. 

The Argument for Costa Eica, therefore, necessarily admits that the Award fixes 
a clear and definite boundary, and, further, necessarily admits that this boundary is 
the one claimed by Panama, for no other would furnish the ground on which Costa 
Eica bases her charge of injustice, or even of ultra petita. 

Why does Costa Eica say that the Award is unjust ? Because it awarded to 
Colombia the whole valley of the Tarire or Sixaola which Costa Eica asserts has 
always been hers without dispute, at any rate so far as concerns everything on the 
left bank and above the mouth of the Yorquin on both banks. Why does she charge 
ultra petita ? For the same reason. That objection would be, even on Costa Eica's 
theory, utterly groundless, unless the Award gave Colombia the whole valley of the 
Sixaola or Tarire and its trihidaries. Equally would the charge of injustice lose its 
foundation, unless that is the result of the Award. 

When, therefore, Costa Eica devotes most of her elaborate argument to theses 
necessarily based upon the existence of a definite and clear boundary fixed by the 
Award and that precisely the boundary which Panama asserts to be the true boundary 
under the Award, it is a strange inconsistency for her to contend, in another part of 
her argument, that the Award is so insensible and inapplicable that it is impossible 
to determine from it what boundary it fixes. The two contentions destroy each other. 

But Costa Eica does more than impliedly to admit that the boundary awarded by 
President Loubet is clear and plain ; she asserts it. Thus in the Argument for Costa 
Eica it is said that 

" On the face of the Award the frontier would appear to he unequivocally 
marked out in te7-ms positive and conclusive, as though they were to be enforced 
in Ihat region without further discussion." 

The only reason assigned for not accpting that boundary is the argument that 
M. Delcass^'s letter amounts to a declaration that the Award is not to be considered 
conclusive,! ^n argument which cannot be taken seriously but which we shall 
consider, later, more at length. 

' Argument for Costa Rica, p. 179. 



29 

So the Argument for Costa Rica further says : 

" Taking the Award literally, what it says concerning the Sixaola River 
and the islands near the coast to the east and southeast of Punta Mona, and 
even those as far off as the Escudo de Veragua, is enough to warrant its 
interpretation in the sense of having adjudicated to Colombia that immense 
tert'itory that belonged to Costa Rica from the line of the Escudo de 
Veragua, and the Chiriqui, or true Culebras where Colombia by force 
installed her canton of Bocas del Toro which she proceeded to extend along 
the costal region of Talamanca as far as the right bank of the Sixaola in its 
lower course. The Award also overstepped the Sixaola boundary and halted 
only at Punta Mona". 1 (Italics in original.) 

These concessions are, we believe, substantially enough to conclude the question 
which is to be answered on this arbitration. If the Award unequivocally marks out 
the frontier, and that in such fashion as to award Colombia all the territory up to 
the Punta Mona line and this be (as in the passages quoted, it is) openly conceded by 
Costa Rica, then both parties are agreed that the " correct interpretation and true 
intention " of the Loubet Award are what Colombia always maintained and what 
Panama now maintains. 

We need not pause here over the curious contention of the Argument for Costa 
Rica that M. Delcass^'s letter amounts to a revocation of the Award. That question 
we shall feel compelled to discuss, more at length, later, because the Argument for 
Costa Rica lays so much stress upon it, although we feel that the mere statement of it 
should be enough for its refutation. Apart from that, we take note here that Costa 
Rica admits that the Loubet Award marks out a boundary " in terms positive and 
conclusive " and that, " taking the Award literally " it gives Panama the territory 
which she claims. 

Can there be any substantial question left as to such an Award ? It is admitted 
to be clear on its face and to have the meaning, taken literally, which Panama gives 
it. No reason is assigned for not taking it literally, as we understand the Argument 
for Costa Rica, except that it is ultra petita, because no territory beyond the Sixaola 
was really " in dispute " (although the Convention of 1886 declares everything to be 
in dispute to Cape Gracias d Dios) and because one of Colombia's 
advocates before President Loubet asked a line which, while including 

I Ibid, p. 364. 



30 

a great deal more than the Award covers, would have excluded a little 
which is within its terms ; that it is unjust and erroneous ; and that the Arbitrator, 
shortly after making the Award, declared it erroneous and really no award at all. 

The first of these objections we have already considered and we believe that we 
have shown that it is unfounded. With the second we have nothing to do. This 
Arbitration is not to revise President Loubet's Award but to interpret and apply it. 
If, then, the third objection be shown to be without force, we have, substantially, a 
concession by Costa Eica that the Award is clear and its meaning plain. 

Panama agrees entirely with what she understands to be the contention of Costa 
Rica as to the true boundary under the Award, that is, that it gives to Panama the 
entire valley of the Sixaola or Tarire and of all its tributaries on both banks, although 
she wholly denies the consequences which Costa Rica seeks to draw as to the results 
of such a boundary in any other than a territorial sense. She considers it too plain 
for argument and only requiring to be pointed out, that such a boundary is not ultra 
petita and, while the question of justice or injustice is irrelevant here, that if there be 
injustice it is not toward Costa Rica. But she does not deem it proper for her, as 
standing in the place of one of the parties to the arbitration before President Loubet, 
to criticise or impugn this Award in any way. In her view that Award is sacred, so 
far as the parties are concerned, and she respects it as such. 

Panama, however, even if she did not consider her national honor bound 
to the maintenance of the Loubet Award, would not involve herself in Costa 
Rica's inconsistency. To her, a contention that the Award is meaningless or inap- 
plicable is not to be conceived. She considers that the Award is so plain and clear 
and its application to the geographical situation so simple and obvious as not to 
admit of any doubt or even argument. 

The argument for Costa Rica on the point now under consideration, taken in 
connection with her opposite view upon the other points to which we have referred, 
constitutes a striking demonstration of the correctness of this position. When really 
construing the Award and arguing from it, Costa Rica, without debate, reaches the 
same construction and application for which Panama contends ; when attempting to 
show that the Award has no meaning, she finds the difficulties insuperable ; and her 
argument to that end, when examined, accomplishes nothing. 



31 



The " Grammatical Analysis op the Loubet Awabd ". 

We shall not discuss the verbal criticism of the award found on pages 166 to 172 
of the Argument for Costa Bica. It is impossible to take it seriously. We can only 
say that we are astonished to find anything so trivial in an argument upon a serious 
qiiestion. It is unworthy the dignity of the occasion and of the parties, and we can- 
not but feel that we should be ourselves lacking in due respect to the Arbitrator if we 
were to ask him to devote his time and attention to a serious discussion of it. 

It is impossible even to discuss an argument, the purpose of which is to show 
that the language in which President Lonbet expressed his Award is unmeaning and 
unintelligible. Apart from the evident absurdity of such a contention, in view of the 
perfect clearness of the Award, it involves an imputation upon the intelligence of that 
distinguished Arbitrator which ought not to be even suggested. 

The Delcasse Letter. 

The analysis of the correspondence between Senor de Peralta and M. Delcasse, 
found on pages 172 to 188 of the Argument for Costa Rica, appears to be intended to 
demonstrate that the Award of President Loubet is no Award at all, that he did not 
fix a boundary, but merely left it to Colombia and Costa Rica to fix one for them- 
selves and that the letter of M. Delcass^ amounted to a revocation of the Award in so 
far as it described any boundary. 

This part of the argument, while not so trivial as the " Grammatical Analysis," 
is, nevertheless, sufficiently plainly beyond any reasonable view and devoid of foun- 
dation, to dispense us also from any necessity of answering it. We desire, however, 
to call attention to some errors contained in it which would be enough, we believe, to 
dispose of it, had it any force otherwise. 

In the first place the conclusion which Costa Rica seeks to reach in this part of 
her argument is, in itself, impossible. A mere consideration of that feature alone 
shows that no argument which leads to such a result can be sound. 

It is no less than an absurdity to suppose that within two months after President 
Loubet had rendered his solemn Award his Minister of Foreign Afi"airs should declare 
that the Award means nothing and that the whole matter is remitted to some decision 
to be reached by the parties as if no Award had been made. 



It cannot, surely, be necessary to refute an argument which leads to such a 
result. Yet unless that result be reached, all that is said in the Argument for Costa 
Kica on this subject is not merely useless but frivolous. To that end alone does it 
tend and if it does not show this, it shows nothing to affect the question here. This 
part of the Argument, therefore, is condemned by its very purpose. It leads to an 
absurdity, therefore it cannot be accepted. 

But the steps by which this impossible conclusion is reached are as faulty as the 
conclusion is irrational. 

In the first place there is inserted on page 176 a faulty translation of M. Delcass^'s 
letter, the errors in which would not be important were not the effort made, in the 
subsequent course of the ai'gument, to draw from them a meaning wholly different 
from that intended. 

M. Delcasse, in this translation, is made to say that, in accordance with Articles 
2 and 3 of the convention of 1886, the boundary must be drawn within the limits . 
of the territory in dispute " as they are found to he from the text of said Articles." 

In fact, the expression of M. Delcasse was " as they are determined hy the text of 
said Articles ", and that is the form in which it appears in Article I of the Conven- 
tion of 1910. 

The difference gives rise to an argument by Costa Rica that Articles 2 and 3 of 
the Convention of 1886 do not fix the limits of the territory in dispute, but still leave 
room for her contention that some other determination may be shown to be the true 
one, and thus the validity of the Award be made dependent upon circumstances ex- 
traneous to the conventions under which it was made. A true translation makes that 
contention, inadmissible in itself, wholly impossible. If the limits are " determined " 
by the Convention of 1886, no argument for a further or different determination can 
be made. 

The second mistranslation is that M. Delcasse is made to say that it is on the 
principles stated by him that Colombia and Costa Rica " will have to proceed in the 
material determination of their frontiers ". 

What, in fact, he said, was that in accordance with those principles " it is for 
the Republics of Colombia and Costa Rica to proceed to the physical delimitation of 
their frontiers ". 



33 

The difference would not be important if it were not used by Costa Eica as a 
foundation for an argument which is, of itself, not legitimate. In the course of that 
argument the error in translating the French word " materiel " by " material " is in 
part corrected by the use of the correct translation, " physical ", but the argument 
still persists. 

It must be obvious that whether M. Delcass6 said " physical demarcation ", 
" physical determination " or " physical delimitation ", the meaning is the same. 
The expression refers only to a physical act, that of laying out and marking a line 
upon the ground, and it cannot mean anything else. 

Considering in detail the eight points into which the Argument for Costa Rica 
divides the results of its analysis of M. Delcasses note, we believe that they will be 
found so wholly devoid of merit as hardly to admit of serious discussion. 

We regret sincerely the frequent use of such expressions which we have felt our- 
selves compelled to make in the course of this answer. We are desirous of treating 
the Argument for Costa Rica with all respect and would not willingly lack in due 
deference to that Republic nor to her learned Counsel. But the 
position which Costa Rica has seen fit to take, which involves 
the repudiation of the Loubet Award and the defeat, and not the 
fulfillment, of the object of the present Arbitration, has forced her to arguments 
which cannot be properly characterized otherwise than as we have done. 

To attempt to repudiate indirectly an Award nominally accepted requires attacks 
upon it of a kind not to be supported by real and serious arguments. 

To endeavor to show that so solemn a writing as the Award of President Loubet 
is so expressed as to have no intelligible meaning ; that he and his Commission of 
Study, after long investigation, made an Award which is so totally inapplicable to the 
geographical situation with which they were dealing as to be impossible to harmonize 
with it ; or that, after the Award was rendered, his Minister of Foreign Affairs prac- 
tically revoked it and declared it to be erroneous, are contentions so out of all reason 
that it is impossible that serious arguments can be found to support them. 

To try, further, to show that an Arbitration, the sole purpose of which is to 
interpret and apply the Loubet Award, may be turned into one to consider the 
validity of that Award, to amend or alter it or to make a new boundary independent 
of it, is a task equally impossible, and equally incapable of support by serious 
argument. 



34 

Her attitude, therefore, has compelled Costa Rica to resort to arguments of a 
different kind and, much as we regret the necessity for doing so, we cannot properly 
discuss them without pointing out, as to each of them, its true character. 

The first of Costa Rica's contentions respecting M. Delcasse's note relates to this 
statement that " for lack of precise geographical data the Arbitrator has not been 
a,ble to fix the frontier except by means of general indications." 

This statement, the Argument for Costa Rica says, " cannot be explained except 
as an indirect recognition of manifest and essential error in the sentence." ' The 
italics are in the original. 

Can this be seriously said ? Is it possible seriously to debate such a contention ? 
Is it even conceivable that, shortly after a formal Award, the Arbitrator (for M. 
Delcass^ spoke for President Loubet) should admit, directly or indirectly, a " mani- 
fest and essential error " in his award ? Such a supposition is not to be entertained 
for a moment. 

Even if such a thing were possible, to attempt to show it by the passage quoted 
would be utterly futile. By no construction can such an inference be drawn from it. 

No detailed maps of the region existed until the recent survey made by the Com- 
mission of Engineers appointed in the present Arbitration. The maps before Presi- 
dent Loubet showed a central cordillera and a counterfort or spur extending from the 
Cordillera to Punta Mona, the former forming the divide between the Atlantic and 
the Pacific and the latter closing on the North the valley of the Sixola or Tarire. 
The details of courses, distances and convolutions of these elevations were not 
indicated nor exactly known. Therefore President Loubet simply indicated 
the counterfort and the cordillera as forming the boundary. Lack of •precise geo- 
graphical data prevented, as Mr. Delcasse said, a more detailed description. Only 
the actual delimitation would furnish such data, but the indication given was 
perfectly clear and precise for the purpose of such delimitation. 

All this is so plain that we find it impossible to understand how anything else 
can be made of it. What process of reasoning could lead to the conclusion deduced 
by Costa Rica we are unable to conceive. At any rate we believe it to be perfectly 
clear that such a conclusion is impossible. 

1 Argument for Costa Rica, p. 179. 



35 

The second proposition advanced by Costa Rica as resulting from M. Delcass^'s 
letter is " that the task assigned to the Arbitrator remained unfulfilled ; that the 
controversy in great part was still open and that the judgment rendered was, there- 
fore, lacking in finality. " ^ The italics, again, are in the original. 

What has been said as to Costa Rica's first proposition is equally applicable to 
this. By it the Arbitrator is made to say, through M. Delcass^, that his Award was 
no award, and did not decide the question submitted to him. That is too far from 
possibility to be debated. 

The argument by which this result is reached is no less extraordinary and unrea- 
sonable. Because the boundary is not described in detail, it is argued that it is not 
described at all. Because, for purposes of delimitation, details must be ascertained 
which the Award does not mention, the Award is fatally defective. This is not serious 
argument. No description would be so precise as to cover every particular, nor need 
it be. If a cordillera or a counterfort be described as forming a boundary and 
it be clear what counterfort or cordillera is intended, there can be no 
further definition needed for a definite and conclusive award. It 
would almost never be possible for an Arbitrator provided with 
maps on an ordinary scale, to trace upon them the exact boundary, nor is there any 
reason why he should do so. That is the task of commissions of delimitation, and 
all that an Arbitrator need do is to indicate in general terms where the boundary is 
to run and leave to such a commission to locate the exact line. 

That is what President Loubet did in this case, and that his indication was 
perfectly clear is admitted even by Costa Rica, for in her argument it is expressly 
stated that 

" On the face of the Award the frontier would appear to be unequivoc- 
ably marked out in terms positive and conclusive."^ 

We have noted that this admission completely overthrows all that part of her 
argument which is contained in what is designated as a " Grammatical Analysis of 
the Loubet Award."* But upon the point now under consideration it is 
no less conclusive against her. If the Award positively and unequivocally 



1 Argument for Costa Rica, p. 180. 

» Ibid., p. 179. 

1 im., pp. 166-173. 



36 

marks oat the frontier, then it completely fulfills the requirements 
of the arbitration. If it can be applied to the actual geographical situa- 
tion (and in this part of the argument for Costa Eica that question is 
not raised) no more can be required. All minor points will be settled by a 
commission of delimitation and there can be none which would not be easily so 
settled. To try to make doubtful an Award admitted to be clear on its face, because 
it designates the boundary only by " general indications " (a fact which is also plain 
on the face of the Award, if no one had said it), is futile. 

The third proposition of Costa Rica concerning M. Delcass^'s letter is that, in 
saying that it would be inconvenient to trace upon a map a line which President 
Loubet had to describe in general terms for lack of detailed geographical data, he 
"placed in suspense " the " decisions of the Award." ^ 

Again arises the conclusive answer to all this matter, that it is impossible to 
take seriously a contention that the Arbitrator, shortly after making his Award, de- 
clared it to be no award at all. The unreason of the conclnsion makes the arguments 
for it unimportant. No argument which leads to such a result can be sound. 

But again the weakness of the argument equals the inadmissibility of the conclu- 
sion. If, the argument runs, President Loubet could lay down the boundary in gen- 
eral terms he could trace it on the map. If he could not trace it on the map he could 
not describe it in general terms. 

Of course this is a complete non sequitur, and worse. M. Delcass^ said, as 
plainly as possible, what is obvious to any one, viz : that lack of geographical details 
made it impossible to describe the boundary more in detail, and the same lack made 
it impossible to trace it on the map. This is perfectly plain and intelligible and 
does not in the least affect the clear and conclusive character of the Award. It is 
perfectly possible and perfectly clear to say that a certain counterfort shall form the 
boundary, while it might be quite impossible to trace the sinuosities of the summit 
of the counterfort on any available map. The two things have no relation such as 
to make one dependent on the other. 

It is singular to note that the Argument for Costa Eica fails wholly to appreciate 
the circumstances surrounding this correspondence between Senor de Peralta and M. 
Delcasse. 

^Argument for Costa Riea, p. 182. 



^ 



37 

The letters of Seiior de Peralta were in the highest degree improper. The first 
was a hardly disguised attempt to induce President Loubet to revoke his 
Award and make another more agreeable to Costa Rica. It was 
an offense against the dignity of that distinguished Arbitrator and a 
breach of all the proprieties of such a situation. M. Delcass6 politely ignored it 
Then followed a second letter, more improper than the first and even insulting to 
President Loubet, for it distinctly intimated that he had violated his duty as an ar- 
bitrator. To this M. Delcass^ replied by the letter which is so elaborately analyzed 
in the Argument for Costa Eica. 

M. Delcasse would have been quite justified in being severe. In fact, he was 
polite, but this politeness appears to have been lost on Costa Rica. She had violated 
every rule of propriety and now she cannot understand why she was not answered in 
kind. She takes forbearance for weakness and a polite denial of what her envoy 
asked, as an actual acquiescence in some of her unfounded contentions. 

Her argument that M. Delcasse, had he not agreed with Seiior de Peralta, would 
have drawn the boundary on a map and have added to and explained the Award, and 
could not, out of mere courtesy, have written the note which he did,i shows a lack of 
comprehension which no one else can share. 

The letters of Senor de Peralta were improper and the requests 
which they contained inadmissible. M. Delcass^ simply declined to consider them. 
That he did so politely cannot be made into an acquiescence in them. 

But the Argument for Costa Eica founds a Fourth Proposition* upon M. Delcass^'s 
politeness, which proposition it bases upon a misquotation from his letter. 

From the fact that M. Delcass^ declined to discuss any of Senor de Peralta's 
statements and would not even notice his criticisms of the boundary described in the 
Award, it is sought to draw the inference that he admitted them to be juslified. 

It must be unnecessary to point out that Arbitrators do not discuss their decisions 
after they have rendered them, nor answer questions as to whether they consider them 
proper. The award made is final and no Arbitrator would be so forgetful of his own 
dignity as to enter into a justification of it, even if a party so far disregarded pro- 



' Argument for Costa Rica, p. 182. 
• Hid., p. 183. 



38 

priety as to complain to him of it. To attempt to draw an argument from the Arbi- 
trator's declining, to amend, to discuss or further elaborate his award is impossible. 

In support of this proposition, however, the Argument for Costa Eica quotes M. 
Delcasse, as we have noted, in such a manner, as, by the omission of the essential 
words, exactly to destroy his real meaning. 

In this quotation the statement is made to read that " the frontier line should be 
traced within the boundaries of the territory in dispute ". This enables Costa Kica to 
argue (basing herself on her former contention that the Convention of 1886 did not 
define the territory in dispute but left it to be determined otherwise) that the ques- 
tion whether or not the line described in the Award was, in fact, within the territory 
in dispute, was remitted to the parties. Hence, it is argued, the question was left 
open, doubt was cast upon the correctness of the line of the Award and it might be 
invalidated if Costa Rica could show, apart from the provisions of any Convention, 
that it was drawn within territory not theretofore in dispute. ^ 

But all this elaborate structure falls to the ground with the completion of the 
quotation from M. Delcass6. What he really said was : 

" But there is no doubt, as you observe, that, in conformity with the 
the terms of Articles 2 and 3 of the Convention of Paris of January 20, 1886, 
this boundary line must be drawn within the confines of the territory in 
dispute, as they are determined hy the text of said articles." 

Thus, while politely agreeing with the only statement of Senor de Peralta on 
which agreement was possible, M. Delcass4 took occasion to point out that what was 
" territory in dispute ". was defined conclusively by the Convention of 1886 and that no 
other definition could be allowed. In other words he expressly excluded the whole 
theory on which the argument for Costa Kica, concerning the meaning of " territory 
in dispute " is based, and destroyed (instead of supporting) that part of the Argument 
which we are now considering. 

It would be, indeed, inconceivable that M. Delcass^ should have declared (as is 
contended for Costa Eica) that the Award just rendered was so vague as to be unintel- 
ligible without further elucidation, so incomplete that its validity or exact effect 
could not be determined without an examination into historical antecedents which it 
does not designate, or, finally, absolutely incorrect. Any argument leading to such a 

' Argument for Costa Rica, p. 184. 



39 

result would constitute a reductio ad absurdum, and thus the argument for Costa Kica 
refutes itself. 

But it is also plain that M. Delcass^'s language admits of no such impossible 
construction and that nothing in his letter justifies the Costa Rican argument, even if 
the result which it reaches were not so contrary to all reason. 

With the fifth proposition of Costa Rica deduced from M. Delcass^'s letter, i we 
are happy to find oui selves in entire accord. 

We entirely agree and have always contended that it is the Convention of 1886 
and nothing else, which conclusively fixes the boundaries of the territory in dispute, 
for the purposes of the arbitration before President Loubet. 

This proposition, however, necessarily destroys wholly the fabric of argument 
that the Award is invalid because of ultra petita, and so we have always insisted. 

If, as we have steadily maintained and as Costa Rica here admits, the demands 
made for the parties on the arbitration before President Loubet cannot be considered 
in determining the " territory in dispute " before him, then the line proposed by Dr. 
Silvela is (as we have always argued) unimportant on that point. It does not serve, in any 
way, to fix the " territory in dispute," and the whole argument of Costa Rica based upon 
the fact that the Award gave Colombia some territory which she would not have had 
if Dr. Silvela's line had been adopted, falls to the ground. 

The same thing is true of her argument that we must look beyond the Convention 
of 1886 to discover what is the " territory in dispute ". But for that Convention 
there would have been no limitation of the jurisdiction of the Arbitrator. He would 
have been free to draw the boundary wherever he chose. The Convention of 1886 
introduced the only limitation, and we have always contended that no other could be 
imagined or imposed. That limitation was that the boundary must not lie in the 
territory of any third power, that the terminal point on the Atlantic could not lie east 
of the Chiriqui nor north of Cape Gracias d Dios (which means north of the northern 
boundary of Costa Rica, since Cape Gracias d Dios is far north of that boundary) 
and that the terminal point on the Pacific could not be east of the Chiriqui Viejo 
nor north of the Golfito. Otherwise he remained as free as ever. 

^ Argument for Costa Rica, p 184. 



40 

Since Costa Eica now argues, in agreement with us, that it is the Conven- 
tion of 1886 which is controlling, no argument for ultra petita is left. It is 
vain to endeavor, by vague phrases, to save a contention that some other limitation 
is also to be considered. If the limitations of the Convention of 1886 are to be con- 
trolling they must be exclusive. If those limitations cannot be enlarged, neither can 
they be made more restricted ; least of all when the purpose of so doing is to acquire 
a basis for impeaching the Award of a distinguished Arbitrator. 

But that, on any question of ultra petita, the Convention of 1886 is the sole 
criterion, we entirely agree ; and we dififer from the learned counsel for Costa Eica 
only in insisting that the acceptance of this principle involves the acceptance of its 
consequences and removes the question of ultra petita from the case. 

We do not, of course, concede that that question is at all before the present 
Arbitrator. On the contrary we maintain that by the very terms of the submission 
to him it is excluded and the absolute validity of the Loubet Award is aflSrmed so as 
to admit of no discussion. But were ultra petita an issue here to be considered, the 
terms of the Convention of 1886 dispose of it, plainly and forever. 

The sixth, seventh, and eighth Propositions of Costa Eica with regard to M. 
Delcasse's letter relate to the physical determination of the boundary, which the 
Arbitrator, of course, committed to the parties. ^ 

The Argument for Costa Eica indulges in much minute verbal criticism of 
language, but there is really no room for such subtleties. 

Whether " delimitation " or " determination " would have been the better word 
for M. Delcass^ to have used, the meaning is the same. President Loubet had made 
a counterfort, a cordillera and a divide which was neither, the boundaries. To delimit 
the boundary thus described it was necessary to ascertain the exact position of the 
crest of these several divides, throughout the line. This crest, when ascertained and 
located, would form the boundary. President Loubet had no detailed data which 
would enable him to do more than he did, but that was sufiScient and perfectly clear. 
It was a mere work for surveyors and engineers to ascertain exactly where the line 
would run and M. Deleasse simply expressed the confidence of the Arbitrator that 
the parties would proceed to the detailed determination of that line amicably and in 
good faith. 

'Argument for Costa Rica, pp. 185-188. 



^ 



41 

That confidence has been deceived, for Costa Rica has refused to proceed at all, 
but M. Delcasse's meaning is perfectly clear. 

The Argument for Costa Rica contains, however, certain statements so unjustifi- 
able and devoid of foundation that we think it proper to note them. 

The statement is made that President Loubet desired that the parties 

" should agree amicably like brothers, without contest, to the inevitable recti- 
fication of the frontier he declared, which technically could be annulled by 
the patent defect under which it labored, but which the losing party would 
be disposed to accept." i 

It is diflScult to preserve a proper moderation of language with regard to such a 
statement. It involves the imputation of such a lack of intelligence aad of rational 
conduct both against President Loubet and M. Delcass6 as is inconceivable. 

According to this extraordinary statement President Loiibet had made an Award 
which he knew to be invalid and incapable of standing at all without a modification, 
and his Minister of Foreign Affairs begged the parties to agree upon such modifica- 
tion as should make it possible to sustain the Award. 

We are unable to understand how such a statement can be made in an argument 
which professes to be serious. No one could, for a moment, entertain such an idea as 
it sets forth. It might be dismissed without comment but for its extreme impro- 
priety. To dignify it by discussion would be, of itself, to be lacking in respect to 
President Loubet, but we have felt that it ought not to pass wholly without notice. 

Upon the same page of the Argument for Costa Eica is the statement that 

" As a result of the Delcasse note, which acknowledges the possibility 
that the territory in dispute might have been trespassed upon, the sentence 
eventually became impaired and the boundary it declared for that territory 
became subject to a future understanding between the parties. Two points 
remained for discussion between them which the Arbitrator could not 
decide." 2 

These two points are said to be whether the Arbitrator exceeded his powers and, 
if so, how the boundary could be readjusted so as not to trespass upon undisputed 
territory. 

1 Argument for Costa Rica, p. 187. 
" Ibid., p. 187. 



42 

Such statements are to us incompreheusible. They are so utterly devoid of all 
basis that no serious discussion of them is possible. It would be impossible to be- 
lieve, had they not been actually made and printed, that any one could put forth such 
a construction of the Delcasse note or make such contentions. 

The Delcasse note " acknowledges " nothing. As we have several times said, it 
is merely a polite statement that President Loubet, having made his Award, would 
not discuss the subject further, and would neither modify, amplify nor comment 
upon it. It involved a rebuke, none the less plain because politely expressed, of the 
impropriety of such letters (and such requests as were contained in them) as those 
written by Senor de Peralta. The acquiesceaco in the latter's statement that the 
line must be drawn within the territory in dispute was merely a courteous way of 
reminding Senor de Peralta that the Convention of 1886 contained the only defini- 
tion of the territory in dispute which could be considered, and that President 
Loubet was entirely aware of the limitations upon his jurisdiction. These things 
need no demonstration. The letter is so plain that any misunderstanding of it should 
be impossible. 

But the conclusive answer to this, as to all that part of the Argument for Costa 
Rica which is based upon the letter of M. Delcasse, is the one which we have men- 
tioned already; that it leads to an absurdity. 

The ultimate proposition, stated in ail its nakedness, is that, after a solemn 
arbitration in which volumes of arguments and documents and innumerable maps 
were examined and carefully considered, President Loubet rendered a formal award ; 
and that, within a few weeks after his award was rendeied, upon no other foundation 
than two letters of complaint from Senor de Peralta, he practically revoked his Award, 
declared it possibly erroneous, and left it to the parties to decide whether it was valid 
or not and to agree upon a line, substantially as if no award had ever been made. 

The mere statement of this result invalidates the entire argument by which it is 
reached. To attribute to President Loubet, to the Commission of Studies by whom 
he was assisted and to M. Delcasse, such imbecility (for no less forcible word will 
suffice) is an impossibility which no argument can overcome. Whatever else might 
be conceived as possible, that cannot be. To put forward such a contention as a basis 
for any action or any conclusion of the present Arbitrator is to condemn the entire 
attitude of the party who does so ; for no cause can be good which invokes such a 
defense. 



43 

Upon this single answer we might safely have rested with respect to this part of 
the Argument for Costa Eica, as we did upon a similar answer in declining to discuss 
the question whether the words of the Award had any intelligible meaning. As we 
felt it to be beneath the dignity of this Arbitration to discuss seriously whether 
President Loubet expressed his conclusions in intelligible language, so we might (and 
perhaps should) have declined to discuss seriously whether he admitted, immediately 
after making his Award, that it was erroneous and without real force or effect. 

But the insufficiency of the arguments adduced for Costa Eica on this point 
equalled the impossibility of the conclusion which they were intended to attain, and 
we have thought it worth while to demonstrate that objection also, and to show, not 
only that the result was one which no arguments could justify, but also that the 
arguments are insufficient to justify any result, even had it been, in itself, reasonable. 
If, in so doing, we have unduly trespassed upon the Arbitrator's time and taxed his 
patience, we trust that we may be pardoned for following too long a path on which 
we were not the first to enter. 

"The Present Aebitration." 

Under this heading the Argument for Costa Eica first considers various matters 
leading to the present Arbitration. We have already dealt with this subject and see 
no occasion for adding to what we have said, except to make clear or correct certain 
points in the Costa Eican statement. 

The Guardia-Pacheco treaty, which Costa Eica refused to ratify, appears to us to 
have no importance, in itself, with respect to the present Arbitration. It was an 
unsuccessful attempt at a compromise which had no consequences. 

It is undoubtedly the fact that Costa Eica proposed to submit for arbitration the 
question of the validity of the Loubet Award and that the United States, in their de- 
sire for a settlement of the boundary (and yielding, no doubt, to the urgency of Costa 
Eica) sent the despatch a part of which is quoted on page 212 of the Argument for 
Costa Eica, stating that there was no intention of limiting the issue " to the mere in- 
terpretation of the Loubet Award." But it is also the fact (as we have ah-eady shown) 
that Panama absolutely and steadily refused to submit the validity of the Award to 
arbitration and refused to enter into any arbitration not confined to the interpretation 
and application of the Loubet Award. 



44 

The United States recognized the justice of Panama's attitude and it was pre- 
cisely that attitude and the acceptance of it which gave rise to Secretary Knox's 
identic memorandum of March 1st, 1910. Costa Rica then abandoned finally any 
attempt to make the validity of the Loubet Award a question before the present 
Arbitrator or to extend this Arbitration beyond the interpretation of that Award. 

The Argument for Costa Rica says that the Memorandum of Secretary Knox was 
" accepted by both parties." ' Now it is to be borne in mind that the question for 
arbitration was formulated in that memorandum after Costa Rica had requested that 
the validity of the Award be also arbitrated and Panama had refused ; and after the 
United States had suggested that the question for arbitration be made to extend 
further than " the mere interpretation of the Loubet Award " and Panama had de- 
clined to permit any extension. The Memorandum shows that the Secretary of 
State had precisely that situation in mind in making his proposition. That propo- 
sition Costa Rica says that she accepted. We confess that we cannot see how, if this 
be so, she can now, without a breach of good faith, argue, and request the Arbitrator 
to decide, the invalidity of the Loubet Award or ask him to modify that Award or 
do anything else than interpret it. The acceptance of Secretary Knox's Memorandum 
necessarily involved an abandonment of her previous and rejected demands. With 
what face can she now act and argue as if those demands had been granted, instead of 
being rejected, and as if she had maintained them, instead of abandoning them? 

But the statement that Secretary Knox's Memorandum was accepted by hoth 
parties is not accurate. Panama, as we have already noted, was still not entirely 
satisfied with the wording of the question to be submitted to arbitration. Intent, 
always, and steadfast in her intention, that by no form of words should it be made 
possible to contend that anything but the mere interpretation of the Loubet Award 
should be submitted to arbitration, she suggested a modification of the question as 
formulated in the Memorandum, so as to prevent the possibility of enlarging the sub- 
ject of arbitration by a hair's breadth, even, beyond that point. 

In his reply to the Identic Memorandum, delivered on March 10th, 1910, Dr. 
Porras, the Representative of Panama upon this subject, said : 

" With respect to the question to be arbitrated, the undersigned believes 
that that question would be accurately stated as follows : ' What is the 

1 Argument for Costa Rica, p. 214. 



45 

boundary between the Republics of Panama and Costa Eica under and in 
accordance with the correct interpretation and true intention of the Loubet 
Award ' ? 

The arbitrator will, undoubtedly, in the course of his examination of 
this question, take into account all the circumstances and facts which may, 
in his view, properly have a bearing upon his decision, but the undersigned 
submits that the enumeration suggested of the considerations which the 
arbitrator shall take into account would extend the scope of the arbitration 
beyond the determination of the question of fact, to-wit, the exact location 
of the line as fixed by the award, which is all that has been proposed ; and 
might lead to a departure from or modification of the Loubet Award, which 
the undersigned does not understand to be within the scope of the proposed 
arbitration, and to which it would be beyond the power of the undersigned 
or his Government to agree, for the reasons heretofore given." 

A comparison of this with Article I of the Convention of Arbitration will show 
that the views thus expressed were accepted by the Department of State and by 
Costa Eica and embodied in the Convention substantially literally. 

We have referred to this before, but it is useful, we believe, to reproduce this 
quotation in connection with our particular examination of this part of the Costa 
Eican Argument. 

It furnishes an additional evidence of the directness and openness with which 
Panama constantly pursued her purpose and the frankness with which she 
made her position always plain. It shows, moreover, even more clearly, 
that all parties understood that position and that on all sides it was clearly 
understood that this Arbitration should include but one question : the interpretation 
and application of the Loubet Award. The meticulous care with which Panama in- 
sisted upon excluding from the Convention any words which might, by any possible 
implication, seem to authorize a consideration, even, of any other question, could not 
be misunderstood by any one. 

Costa Eica's attitude was one of acquiescence. She desired that the validity of 
the Loubet Award should be debated ; Panama refused, and Costa Eica acquiesced. 
She desired that the boundary question, as a whole or in part, should be considered 
apart from the Loubet Award and a modification of the Award authorized if the 
Arbitrator should think it proper ; Panama refused, and Costa Eica acquiesced again. 
She preferred the form of question proposed by Secretary Knox as broadening a 



46 

little the scope of the Arbitration beyond the mere interpretation and application of 
the text of the Loubet Award ; Panama insisted on an amendment, for the express 
purpose of restricting the scope of the Arbitration, and Costa Rica acquiesced again. 

Was this acquiescence of Costa Eica in good faith ? No one, we are sure, ques- 
tioned or doubted it then. But now when we find her striving to import into 
this Arbitration these various questions, as explicitly excluded, in effect, 
as if the Convention had specifically provided that they should not be considered, and 
passing by, with almost total neglect, the one question which, under the Convention, 
is submitted to arbitration, it is hardly possible to escape a doubt. The result is, at 
least, the same as if Costa Eica had led Panama into an arbitration by promising to 
confine herself to one question and to abandon her attempt to raise any others, with 
the purpose of reviving the excluded questions as soon as the Arbitration was organ- 
ized. That is, at any rate, what she has done, whether in bad faith or inadvertently. 

It is, perhaps, unnecessary to consider this point nicely, for we. are acting under a 
Convention which prescribes the question to be decided and bars the way to all 
attempts to raise any other questions. It is comparatively easy to 
refuse to obey an unfavorable award, but it is impossible to bring into an 
arbitration issues not within the terms of the convention under which it is held. 
The Arbitrator has power to exclude whatever is not proper to be considered. We 
may, therefore, assume the purposes or intentions of Costa Eica to be excellent, and 
rest upon the terms of the Convention, which forbid the consideration of the ques- 
tions which she raised. 

The Argument for Costa Eica completely overlooks the modification by the Con- 
vention of the question proposed by Secretary Knox and, through inadvertence, no 
doubt, wholly mis-states the fact. It says of the question as proposed in the identic 
memorandum : 

" This formula, proposed by Secretary Knox, and the formula finally in- 
corporate sinto the treaty, were expressly declared by the parties, at the 
conference above-mentioned, to be absolutely equivalent, or identical, with no 
other difference than that resulting from their editing." i 

We are not clear to what " conference " reference is made, but the letter of Dr. 
Porras to which we have referred shows that the statement is the reverse of the fact. 

^ Argument for Costa Rica p. 223. 



47 

So far from the two forms being identical or the difference between them being 
merely one of " editing," they are materially different and the difference 
is due precisely to an intention to exclude the possibility of 
such a construction as that which Costa Kica now vainly strives to put upon the 
question. 

Nothing could show more clearly than this effort of Costa Rica the wisdom of 
the modification which, at Panama's request, was made in the form of the question. 
The criticism might have seemed, at the time, almost hypercritical and the change 
suggested really unnecessary, though allowed e majore cautela. But now Costa 
Rica shows how she would have endeavored, had the question been left in the 
form first proposed, to make use of its language to broaden the scope of this Arbitra- 
tion almost without limit. Happily the wise change in the question makes the effort 
unavailing and confines the controversy to its true limits, and Costa Rica is com- 
pelled, in her efforts to remove all limitations, to have recourse to the original lan- 
guage and ignore the change. But this she cannot do. 

We confess ourselves unable to account for the statement of the Argument for 
Costa Rica that Dr. Porras 

" made it known that he accepted the formula suggested by Mr. Knox but that 
to avoid redundancy he proposed that the words "in view of all the historical, 
geographical, topographical and other facts and circumstances surrounding it 
and in the light of the principles of international law ' he changed to the more 
comprehensive clause ' taking into account all the facts and circutnstances and 
considerations that may have a hearing upon the case\" (Italics in original).^ 

and that Senor Anderson for Costa Rica made no objection, " it being his under- 
standing that the propositions were identical," but insisted that a reference be made 
to the letter of M. Delcass4. 

The answer of Panama to the Identic Memorandum of Secretary Knox com- 
pletely refutes all these statements. Not one of them is in accordance with the fact. 
As we have already twice noted. Dr. Porras objected to the form of question sug- 
gested by Secretary Knox on no such empty ground as " redundancy ", but because 
it contained elements which might involve a broader scope to the Arbitration than 



'■ Argument for Costa Rica, p. 239. 



48 

Panama could accept. He did not suggest a " more comprehensive clause," but 
objected to any characterization of the question which might by any possible im- 
plication, make it include more than the mere interpretation and application of the 
Loubet Award. 1 

Panama did consent that the Convention should say that, in answering this 

narrowly restricted question, the Arbitrator should take into accourt all the 

facts, circumstances and considerations which may have a bearing on the case," for, 
as the answer to the Identic Memorandum says, 

" the Arbitrator will, undoubtedly, in the course of his examination, take 
into account all the circumstances and facts which may, in his view, properly 
have a bearing upon his decision," 

but she would not let these words be incorporated with the question, precisely in order 
that Costa Kica might have no excuse for arguing as she now does. The words to 
which the Argument for Costa Eica refers are placed in a separate paragraph of the 
Convention where they are at once superfluous and innocuous. 

Nor is it the fact that it was Sefior Anderson who insisted on the insertion in the 
Convention of the reference to M. Delcass^'s note. There having been words on the 
part of Costa Kica suggesting a possible contention that the Loubet Award was void 
for ultra petita, Dr. Porras insisted upon a reference to M. Delcass^'s letter, to bar 
(as we have shown in our first Statement that it does) any attempt to defeat this 
Arbitration and impeach that Award on such a ground. 

It never was and never could liave been Senor Anderson's understanding 
that the question stated in the Convention was identical with or equivalent to that 
proposed by Secretary Knox. He knew that it was altogether different and had been 
made different in words in order that it might be different in meaning. He knew 
that this difference in meaning consisted in narrowing, and not enlarging the scope of 
the negotiation. He knew that the reference in the Convention to M. Delcass^'s 
letter was not suggested by him but by Dr. Porras. All these things were matters of 
discussion and debate in which, finally, the contentions of Panama prevailed, and 
it is with a natural astonishment that we see in the Argument for Costa Rica state- 
ments so diametrically opposed to the actual facts. It is to be regretted that Seflor 

^ Ante, p. 



49 

Anderson, since he was not to represent Costa Eica upon this Arbitration, did not 
more fully and accurately inform those upon whom that duty was to fall. 

As we have already said, the fact that the present counsel for Panama had the 
honor of cooperating in the making of the Convention of 1910 has given them full 
means of knowledge upon this subject, and information which the present representa- 
tives of Costa Kica evidently lack. 

Such lack of information can alone explain the statements to which we have just 
referred, but it has an even more unfortunate result. It has led to the inclusion in 
the Argument for Costa Eica of a passage headed " Eesultant Powers of the Arbi- 
trator " 1 which wholly falls when once these misstatements of fact have been cor- 
rected. 

Nothing could better demonstrate the wisdom of the modification in the form of 
the question to be submitted for arbitration, upon which Panama insisted, than 
this passage in the Argument for Costa Eica. Precisely the difiBculties then 
apprehended are here exemplified. The Argument for Costa Eica first erroneously 
identifies the question stated in the Convention with that suggested by Secretary 
Knox, and then argues from that, that the whole question of the boundary, with only 
the most incidental reference to the Loubet Award, is before the Arbitrator for 
review. He is not to be " a mere humble interpreter, like the ordinary judge ",* but 
is to modify the Award wherever he thinks that it should have been other than it was. 

But with the correct statement of the facts concerning the question stated in 
Convention, all this fabric of argumentation falls. The language of the Convention 
itself refutes it for it states that the only difference between the parties is as to the 
" interpretation " of the Award ; and it was necessary for Costa Eica to have recourse 
to the question suggested by Secretary Knox in order to have the least excuse for the 
extravagant theory of the scope of this Arbitration which she needed. But the 
Knox question was excluded precisely for the purpose of making such arguments 
impossible and when this is known, they can no longer be maintained. 

We need not, therefore, examine these arguments in detail. Based upon a mis- 
take of fact, they have no force. The position of a judge interpreting an instrument 
haa not been usually considered so humble as the Argument for Costa Eica would 

1 Argument for Costa Rica, pp. 230-236. 

» Ibid., p. 280. ..... 



50 

make it. Indeed it has been generally thought one of the highest which exists, at 
least among civilized peoples. That high office is precisely that of the present 
Arbitrator. He is here to interpret and to apply. He is not here to revise, correct 
or annul. Such is not his office, and to argue before him that there is error in the 
Award, which it is his sole business to interpret and apply, is to beat the air. 

We regret to see repeated in this part of the Argument for Costa Eica the utterly 
groundless assertions that President Loubet " confesses the deficiency of his work "* 
and that, according to M. Delcasse, he " evaded the duty with which he had been 
charged."^ 

Nothing could be further from the fact, nothing more utterly baseless. It is not 
worth while, it is not even consistent with the dignity of this Arbitration, 
to discuss here such statements. We give elsewhere more space to their 
refutation than they deserve, only because of the importance which Costa Kica appears 
to attach to them. But the intelligence and dignity both of President Loubet and of 
M. Delcass^ need no defense from us and we are convinced that a mere perusal of 
the Award of the one and of the letter of the other will satisfy the present Arbitrator 
that such statements are beyond the field of serious consideration. 

" Maximum Limit of the Tekritoby in Dispute." * 

The Argument for Costa Rica next proceeds to argue what, according to her 
theory, is the " Territory in Dispute." 

Into this field, again, we shall decline to follow her. There is no room for such 
discussion. The Convention of 1886 furnishes the only admissible definition of the 
" territory in dispute," as M. Delcasse said, in his often quoted letter. No argument 
can be permitted to alter, add to or take from that definition in any way. There is 
not and never was any question as to what was the " territory in dispute " before 
President Loubet, nor any room for argument concerning it. It is equally evident 
that the boundary fixed by President Loubet does lie wholly within the territory in 
dispute as thus defined. There is, therefore, nothing germane to this arbitration, 
upon this point, left to be considered. 



' Argument for Costa Rica p. 235. 

» ma. p. 236. 

' Argument for Costa Rica, Chap. IV, pp. 237-257. 



51 

"We desire here merely to note, as we have upon other subjects, certain errors 
and inaccuracies in the Argument for Costa Rica. 

There is the repetition of an erroneous translation of M. Delcasse's note, which 
has, perhaps, no great importance. The Convention and M. Delcass6 speak of " the 
confines of the territory in dispute as determined by certain articles of the Conven- 
tion of 1886. The Argument for Costa Rica makes this " the limits of the territory 
in dispute as they are found to be from the text of said Articles." ^ The difference 
may be unintentional, but if it is intended to argue from the latter form that M. 
Delcassd spoke of the Convention of 1886 as only furnishing indications by which 
the territory in dispute might be otherwise ascertained, the error should be corrected. 
He spoke of the Convention of 1886 as determining the limits of that territory. If 
any argument as to the correct translation were otherwise possibly, it is cut off by 
the present Convention which uses the word " determined " in referring to M. Del- 
casse's note. For the purposes of this Arbitration, therefore, that must be taken to 
be what he said. 

It is also stated that the boundary claimed by Costa Rica in the Conven- 
tion of 1886 is a line formed by the Calobebora and Chiriqui Viejo Rivers.* A 
mere glance at the Convention of 1886 shows the error. Nothing is said of any internal 
line, or whether it does or does not follow these rivers. The Island of Escudo de 
Veraguas is also mentioned in that Convention as an extreme point of Costa Rica's 
claim " on the Atlantic." If that be taken, where is the line from it to be drawn ? It is 
admitted that, even on Costa Rica's theory, her line, under the Convention of 1886, is 
indeterminate from the head waters of the Calobebora to those of the Chiriqui Viejo. 
Thus it is clear that the Convention of 1886 meant to fix only terminal points and not 
interior lines. 

We shall not discuss the fanciful geometrical lines to limit Colombia's claims 
imagined in the Argument of Costa Rica.* They are all merely speculative and 
no valid inferences can be drawn from them. The Convention of 1886 does not deal 
with interior lines, but leaves them open. It is futile to try to imagine what interior 
lines would have been fixed, had any been. None were, in fact, fixed, and nothing 



1 ifoU.p. 338. 

' Argument for Costa Rica, p. 238. 

» Ibid., pp. 239-241. 



52 

can come now of an attempt to supply what was omitted — and, it must be, intention- 
ally omitted— from the Convention of 1886. 

These considerations apply equally to the attempt to fix internal lines under the 
Convention of 1886, by reference to supposed historical matters. * That Convention 
limited President Loubet's jurisdiction as far as the parties thought necessary. Ex^ 
cept as so restricted it left him absolutely free. It is idle to devise further limita- 
tions which the Convention would have contained, had they been intended, but which 
it does not contain. Our only guide must be the Convention itself. That is ele- 
mentary. If a limitation is contained in the Convention it must be regarded ; if it 
be not there, it cannot be imported. To devise a limitation not in the Convention 
and then to argue that President Loubet was in error and his Award invalid, because 
be did not observe it, is too fantastic a course to be considered seriously. 

As little shall we consider that part of the Argument for Costa Rica which deals 
with the line proposed in the Arbitration before President Loubet by Dr. Silvela for 
Colombia. 2 That line has only this importance ; that it shows that it was not then 
supposed that there was any such limitation of President Loubet's jurisdiction as Costa 
Eica now tries to invent. Obviously Dr. Silvela was not proposing a line which (as 
Costa Rica now asserts) was beyond the jurisdiction of the Arbitrator to grant and 
the award of which would have involved ultra peiita. The line may have been right 
or wrong, but it could not have been one which the Arbitrator had no power to allow. 

At any rate, the Silvela line has no importance now. It was totally disregarded 
by President Loubet. No part of it is incorporated into his Award. It was a re- 
quest of counsel which was denied by the Arbitrator. It has no conceivable impor- 
tance now, beyond that which we have mentioned, and cannot have any effect upon 
the present Arbitration. 

" QOESTIONS ABGUED IN THE LoUBET AeBITBATION AND ThEIE SOLUTION." * 

This is the heading of Chapter V of the Argument for Costa Rica. 
Again we find nothing to be considered, except a few isolated passages. 



' Argument for Costa Rica, pp. 241-248. 
'lbid.,i>p. 248-257. 
' Ibid., pp. 258-276. 



53 

Under some circumstances and if the Award were doubtful or ambiguous in its 
terms, some guide to its meaning might be conceivably found in considering the ques- 
tions argued before President Loubet. But such is not the case here, and the utility 
of this barren re-statement of events supposed to have occurred long before the Arbi- 
tration, we confess ourselves unable to divine. 

There is also a repetition of the oft-repeated attack upon President Loubet and 
M. Delcass^ unjustified, improper and absurd. There is the equally unfounded 
statement that to award to Colombia the upper valley of the Sixaola or Tarire must 
involve ultra petiia,^ though it is too obvious for argument that it does not. 

Then follows a statement of what Costa Kica really seeks in this Arbitration. 
While contending that the Loubet Award might properly be declared void, the Argu- 
ment says that she does not ask this, but that the present Arbitrator establish, in- 
stead of the boundary awarded by President Loubet, 

" A boundary that will be more in accord with justice in the light of the 
other antecedents, circumstances and considerations to which he must also 
give weight." 3 

That is, Costa Eica asks that the Arbitrator shall not construe nor determine ihe 
true intention of the Loubet Award, but that he shall discard that Award and fix a 
different boundary " more in accord with justice," as Costa Eica represents it. 

Nothing could show more clearly how far Costa Eica is from adhering to the 
purpose of this Arbitration. Nothing could show more clearly how completely a 
pretence was her contention that the Loubet Award required elucidation or construc- 
tion. Nothing, finally, could show more clearly that what she has been doing for the 
nearly fourteen years since the Award was rendered, is simply a wilful violation of 
her solemn engagement in the Convention of 1886 and a breach of her national faith. 

She has, and has had, no doubt of the meaning or application of the Award ; 
she does not, and never did, suppose it invalid on any ground ; she was only dis- 
satisfied with it and would not accept it, even though she had pledged her national 
honor to do so. 

With the same disregard of all obligations she now asks that the Loubet Award, 
solemnly accepted again by the Convention of 1910, be disregarded, and that the 

* Argument for Costa Rica, p. 265. 
*ll>id., p. 265. 
•iSid., p. 270. 



54 

present Arbitrator, instead of performing the only duty which is his, by construing 
and applying that Award, discard it and assume the duty, never committed to him, 
of fixing another boundary more in accord with what Costa Rica calls " justice." 

She tbus refuses to accept the Award of President Loubet, which, by the Con- 
vention of 1886, she had solemnly promised to accept " whatever it may be " ; she 
makes the appeal against it, which, by the same Convention, she had, with equal 
solemnity, bound herself not to take ; and she asks the present Arbitrator to discard, 
substantially. President Loubet's Award, and fix a different boundary from that de- 
termined by him, though she knows that Panama entered this Arbitration only upon 
condition that it be confined to the interpretation and application of the Loubet 
Award. 

It is unnecessary to characterize such conduct. The open avowal of Costa Rica's 
purpose, however, makes it needless to argue further, in order to show what that pur- 
pose is. It discloses also the reason for the form which her Argument takes and the 
irrelevancy and futility of what it contains. It justifies the disregard of that Argument ; 
for since Costa Rica admits that her purpose is to break down, and not to support, the 
Loubet Award ; to procure the substitution of another boundary for that which the 
Award fixed, and not to interpret and apply the Award itself ; it is evident that the 
Argument can have no relevancy here. 

We are not here to determine the validity of the Loubet Award ; that is conclu- 
sively established by the Convention under which this Arbitration is held. We are 
not to discuss the justice or correctness of that Award ; that, too, is, in the same way, 
conclusively established. We are to consider only one thing ; the interpretation and 
application of a valid 'and just award. 

When, therefore, Costa Rica announces that the purpose of her Argument is to 
show only that the Loubet Award is invalid and unjust and to obtain a de- 
parture from it and a boundary different from that which President Loubet 
awarded, it is obvious that it must be irrelevant, as we find that in fact it is. 
Argument to show the Award invalid cannot help in interpreting it. Argu- 
ment to prove it erroneous and unjust cannot be of assistance in its 
application. It is true that it must be given a meaning before it can be called 
unjust, but that becomes merely incidental in such an argument. Amid contentions 
that the Award has, on its face, no meaning, that, while it appears to have a meaning, 
M. Delcass^ declared that it had none, and a mass of assertions as to negotiations. 



55 

abortive treaties and statements of oiiicials and geographers for eighty years preceding 
the Award, there is no definite statement of what Costa Rica supposes the " correct 
interpretation and true intention " of the Loubet Award to be. From the nature of 
her objections to the Award it would appear that she does not differ from Panama on 
this point. Apart from the evident clearness of the Award itself, no other construc- 
tion could serve for the contentions of Costa Kica as to invalidity and injustice. But, 
at any rate, the declaration of Costa Eica that she seeks, not the interpretation and 
application of the Loubet Award, but its overturning and the fixing of a different 
boundary explains and emphasizes the fact that her Argument is wholly irrelevant. 
She is not considering the question submitted to the present Arbitrator and her 
Argument, naturally and necessarily, does not apply to it. 

It is hardly necessary to consider the part of the Argument for Costa Eica 
entitled " Criterion and Intent of President Loubet in the Decision of the Arbi- 
tration".! 

This is as little relevant as the rest. It may be summed up as follows : 
President Loubet intended to make a just and correct award ; he did not do so ; 
therefore the Award is not in accordance with his intentions. 

Of course no arbitral award could be binding if such arguments were admitted. 
Every arbitrator means to do right, every defeated party thinks that he has erred, and 
so every defeated party would argue that the award was not in accordance with the 
arbitrator's intentions. To allow any force to such an argument would lead again to 
a reductio ad absurdum. 

In fact, we have nothing to do with President Loubet's abstract intentions. We 
are concerned -only with what he did. He made an Award. We are to consider 
what that Award meant. Beyond that we cannot go. Even if he had errred, that 
could not matter now, and the question whether he was right or not is not here for 
consideration. 

We need not, therefore, consider further these matters, which are wholly foreign 
to the present Arbitration. 



1 Argument for Costa Rica, pp. 370-376. 



56 

" Opposition to the Line Indicated by the Punta Mona Spur." 

This is the title of Chapter VI of the Argument for Costa Eica.i and here, again, 
are found the same characteristics as in the rest of the Argument ; that is, it is not 
addressed to elucidating but to opposing the Loubet Award. 

The very title of the chapter indicates its purpose. The Loubet Award defines 
one part of the line as formed by " the Punta Mona Spur", to use the concise phrase 
of the Argument for Costa Rica. The title of the chapter shows that its purpose is 
to oppose that line. The generality of the designation of the line opposed shows that 
Costa Rica is opposing any line " indicated by the Punta Mona Spur ". That is, her 
argument is not intended to show what is the actual location intended by President 
Loubet for this line, but to show that he should not have awarded any such line. 

The contents of the ehapter justify its title, and thus, again, Costa Rica does not 
argue the only question here submitted for arbitration— the meaning and 
application of the Loubet Award — but devotes herself to the futile and 
irrelevant task of trying to impeach that award. The task is 
futile because, besides its impossibility, it deals with a subject which this Arbitrator 
is not empowered to consider ; and it is irrelevant, because it has no bearing upon the 
only question which has been submitted to him. If the Award were erroneous, that 
fact would not concern him, for his office is only to interpret and apply it as it stands. 
For the purpose of such interpretation and application the correctness of the Award, 
in any respect, is entirely irrelevant, for it does not aid in determining its meaning. 

It may be noted here, again, as we have had occasion to note with respect to all 
the rest of the Argument for Costa Rica, that Costa Rica is taking precisely that 
appeal against President Loubet's Award which the Convention of 1896 forbade and 
which, by that Convention, she solemnly waived and renounced. By constant 
iteration this breach of a solemn engagement may become so familiar as to be less 
striking than it was at first, but it ought not to be passed by without notice. It is a 
strange thing to see a party seek from one arbitrator an award based and conditioned 
upon her refusal to keep her promise to abide by the award of another arbitrator. 

The same considerations which have dispensed us from the necessity of consid- 
ering in detail the other parts of the Argument for Costa Rica are of the same effect 

1 Argument for Cost Rica, p. 167. 



57 

here. We cannot discuss the correctness of President Loubet's Award in any re- 
spect. The terms of the Convention of 1910, under which this Arbitration is held, 
as well as due respect for that distinguished Arbitrator and for an international 
award, solemnly made, forbid. "We are not here to revise or correct the Loubet 
Award. The purpose of this Arbitration is only to construe and apply it. 

But we desire, as we have done with other parts of the Argument for Costa 
Eica, to comment upon and correct various statements in the chapter under consid- 
eration, which we think ought not to pass wholly without notice. 

Much space is taken up in the Argument for Costa Eica by a labored attempt to 
show that the divide which closes on the north the valley of the Sixaola or Tarire is 
not a " counterfort " or " spur ", properly so called, but is formed by a series of iso- 
lated elevations connected by others less elevated ; and there is much elab- 
orate discussion of the exact meaning of " contrefort ", " counterfort ", " spur ", 
" valley " and other words. The purpose of all this is to show that 
President Loubet used the wrong words in describing that part of the boundary 
which runs from Punta Mona to the cordillera, and that, therefore, his Award cannot 
be applied or enforced. * 

Now in the first place, it is, we believe, as we have said in our original State- 
ment, perfectly immaterial whether the words used by President Loubet were tech- 
nically accurate or not. If there be, as there certainly is, an elevation extending 
substantially from Punta Mona to the cordillera, forming the division between the 
waters which flow into the Sixaola or Tarire and those flowing into the next river 
to the north, it does not matter at all whether its most accurate technical designa- 
tion is " counterfort ", " spur ", " divide " or anything else. No one can question 
that this is the elevation intended by the Award. 

Nor can it be of any consequence whether, in strict accuracy, the elevation in 
question should be said to " close to the north " the " valley " or 
the " basin " or the " water-shed " of the Sixaola or Tarire. The mean- 
ing of the Award is no less clear, whichever word be used. Arbi- 
trators are not required to conform to the nice distinctions of lexicographers 
in their use of words, under penalty of nullity of their awards if they fail to do so. 



' Argument for Costa Rica, pp. 278-334. 



58 

We confess that this discussion appears to us unworthy the dignity of this 
Arbitration. It is not a question of etymology or grammar which is under consider- 
ation, and we are unable to discover from the Argument for Costa Rica that any doubt 
exists or can be made as to what the Award means, which is the only matter of any 
importance. 

It is to be borne in mind constantly that the real objection of Costa Eica is to 
the Award itself. Nothing could show more clearly than does the whole Argument 
for her, that no doubt as to the meaning of the Award nor as to its application to the 
actual geographical situation has caused her failure to comply with it. Pages are 
devoted to arguments based upon the assumption that its meaning and application 
are plain and are preciselj' those which Colombia and Panama have always main- 
tained. Again and again it is affirmed that Costa Rica will not comply with the 
Loubet Award because she does not consider it right and just. Therefore it is that 
Costa Rica does not argue the meaning and application of the Award, except in 
repeated efforts to make it out to be insensible and impossible to apply. 

If that were the case, then only two alternatives would remain : either the pres- 
ent Arbitrator would have to fix a boundary independently of the Loubet award or 
he must declare himself unable to answer the question submitted to him and the Ar- 
bitration must end without result. The former of these alternatives is not available. 
Under the present Convention of Arbitration no boundary can be fixed independently 
of the Loubet Award and no other boundary than that which that award fixes. 
Therefore only the latter of the two alternatives would be possible, and the present 
Arbitration would end without result. In that case, as Costa Rica is in possession of 
the territory belonging to Panama under the Loubet Award, she would remain in 
possession, she would continue her refusal to comply with the Loubet Award and no 
progress toward a final settlement would have been made. 

It is impossible to avoid the suspicion that such may be Costa Rica's purpose, 
but, at any rate, the fact remains that, her real objection being her dissatisfaction 
with the result of the Award and not any doubt as to its meaning, she 
has necessarily addressed all her argument to overthrowing it and has not attempted 
to suggest an interpretation or application of tt which could be adopted and which 
would make possible compliance with it. She is resolved, and, indeed, admits it, not 
to comply with it in any way. 



59 
This attitude furnishes the key to the whole Argument for Costa Eica. 

" It has been her irrevocable decision not to accept the Award insofar as, 
from a careful examination of its dispositions, it loould result that it adjudi- 
cated to Colombia Costa Bican territory which loas not in dispute and conse- 
quently not submitted to the jurisdiction of the Arbitrator."'- (Italics in 
original.) 

What was territory in dispute Costa Rica undertakes to decide for herself. 
President Loubet decided it by making his Award, and decided it in accordance with 
the Convention of 1886, which gave a conclusive definition of it. It is Costa Eica's 
"irrevocable decision" not to accept his decision. Will she be any more 
ready to accept the decision of the present Arbitrator ? Apparently not, 
unless it be otherwise satisfactory to her. If her decision is " irre- 
vocable" not to accept President Loubet's decision in this respect, 
it would apparently not be affected by an Award of another Arbitrator, which pro- 
duced the same result. Costa Rica will accept no judgment but her own. 

The part of her argument which we are now considering, however, has for its 
purpose the entire invalidation of the Loubet Award, from the Cordillera to the 
Atlantic. This is to be accomplished by demonstrating that President Loubet should 
not have called the elevation extending from Punta Mona to the Cordillera a " counter- 
fort " but by some other name, and that he should not have said that it " closes to the 
north the valley of the Eio Sixaola or Eio Tarire," but that it closes the " basin " or 
" watershed " of that river. Had he chosen other words his award would have been 
clear and intelligible ; because of his inaccurate designations it becomes impossible of 
application. 

We have said, already, how unimportant such an argument appears to us. We 
now desire to show that, had the general thesis any force, there is nothing to 
support it. 

In the first place the Argument for Costa Eica criticizes the Commission of 
Engineers for not saying whether or not they considered the elevation from Putna 
Mona to the cordillera a " counterfort " or not and argues that their failure to do so 
shows that they did not consider it a " counterfort."* 



1 Argument for Costa Rica, p. 219. 
• Argument for Costa Rica, p. 285. 



60 

The Ai'gument singularly overlooks the fact that Commissiouer Ashmead, the 
representative of Costa Rica on the Commission, has explained why the Commission 
designated this elevation throughout as a " divide." 

" In its deliberations and in letters to the engineers and geologist, this 
Commission has used the words " divide north of the Sixaola River " not 
with the intention of interpreting the meaning of clause X to be a divide, 
but rather to obviate the use to them of the words counterfort, buttress, and 
spur ; having considered these latter words as perhaps being a part of the 
matters to be arbitrated." ' 

The same course and, obviously, for the same reason, was followed by the 
Commission in their report. They were careful not to appear to trespass on ground 
reserved to the Arbitrator ; they thought it possible that the question whether the 
divide which bounded on the north the valley of the Sixaola or Tarire was technically 
a " counterfort " or not, might be one of the things which the Arbitrator was to 
decide, and so they avoided characterizing it themselves and called it simply a 
" divide." 

No possible inference that they would have said that it was not a counterfort 
can be drawn from their report. Indeed from their adoption of the report of the 
geologist, who has no doubt that this divide is a counterfort, the inference would be 
that they were also of that opinion. 

Commissiouer Ashmead, appointed by Costa Rica, in his statement supplemental 
to the report of the Commissioner, found the question diflScult to decide, but finally 
concluded that the " divide " is not, technically, a counterfort.* 

Commissioner Hodgdon, appointed by Panama, found no diflSculty in affirming 
the existence of precisely what is described in the Award and that it is the " divide " 
mentioned in the report.* 

The Geologist of the Commission reached the same conclusion, though he does 
not use the word " counterfort " nor " spur ". But he finds a continuous elevation 
from Punta Mona to the cordUlera in which any appearance of lack of continuity is 
due only to erosion.* 



^ Report of Commission ; Ashmead's statement, pp. I, 2. 
> Ibid, p. 4. 

• Hodgdon's statement, p. 13. 

* Report of Geologist to Commission, pp. 17-21. 



61 

Most of Commissioner Ashmead's statement is devoted to an argument against 
the report of the geologist and of course the argument for Costa Eica attacks 
the Geologist, the Commission and Commissioner Hodgdon. But Commis- 
sioner Ashmead stands alone and has no such authority as to prevail 
over all the rest. It would not be possible, we believe, to find that there was not 
a counterfort such as is described in the Award, if that particular designation were 
material. It would be certainly impossible on such a ground and in view of the actual 
geographical situation to adopt a theory which should result in invalidating the Award 
of President Loubet. 

The small swamp back of Puuta Mona is the subject of long consideration in the 
Argument for Costa Eica.i It is to be borne in mind that this swamp is insignificant in 
extent, being at most only from 1^ to 2^ kilometres in width, that it is, therefore, only 
upon maps on a large scale that it can be noted and so its existence would naturally 
not be known to President Loubet, that the Geologist of the Commission reports it as 
only covering a low saddle in the counterfort or ridge which runs from Punta Mona 
to the Cordillera and of which Punta Mona forms a part, and that it is too unimport- 
ant to constitute a factor in so large a matter as this boundary. 

It is true that the line drawn by the Commission across this little swamp is 
arbitrary. The true summit of the counterfort is hidden and so cannot be de- 
termined. As we have said in our original Statement, this appears to us 
to be a reasonable method of fixing this part of the line, but the 
matter is too unimportant to jnstify extended discussion. That any such petty detail 
could be made the means of impeaching President Loubet's Award is a proposition 
too unreasonable to be seriously discussed. 

As we have said in our original Statement, President Loubet's meaning is per- 
fectly clear. He intended that the boundary should begin at Punta Mona and should 
follow the elevation which bounds to the north the valley and watershed of the 
Sixaola or Tarire. If, to effectuate that meaning, a line must be defined across this 
little swamp, that is precisely such a detail as the present Arbitrator has been asked 
to supply. His office is to enforce the Loubet Award, not to overthrow it. 

All these questions of " counterfort," " spur," " valley " and " swamp " are wholly 
unimportant, when once the Award is looked at in its broad intent and meaning. 

' Argument for Cost* Rica, pp. 297-303. 



62 

Were that doubtful, recourse might be had to minor details to ascertain it, but it is 
not so. The meaning of the Award is plain and the recourse to details by Costa Rica 
is not intended to make it plainer but to obscure it and cloud its clearness. It is not 
so that such questions are to be considered or decided. 

A conclusive answer, so far as Costa Rica is concerned, to so much of her Argu- 
ment as is based on these verbal subtleties is one to which we have referred in our 
original Statement, but which it is proper here to state again. It is found in the 
letter of Sefior de Peralta to M. Delcass6, to which the Argument from Costa Rica 
attaches so much importance from another point of view. 

In that letter, written, as it states, " to avoid all possible confusion with respect 
to the intentions " of President Loubet, " as they appear from the arbitral award " 
and to give the interpretation which Costa Rica placed upon the Award, the boundary, 
as Costa Rica interpreted it, is described in detail. This description begins as 
follows : 

" The boundary between the Republics of Costa Rica and Colombia 
shall be formed by the counterfort of the Cordillera which starts from Cape 
Mona on the Atlantic Ocean, and closes on the North the valley of the River 
Tarire or Sixaola." 

These are the same words which the present Argument for Costa Rica declares 
to be insensible and inapplicable, but these are the words which she chose, in 1900, 
for a description of the boundary which should " avoid all possible confusion." 

It is impossible, after this, to take seriously (if it were ever possible to do so) the 
" grammatical analysis " of the Award or the long discussion about the words " counter- 
fort " and " valley " and the swamp back of Punta Mona, contained in the Argument 
for Costa Rica. She cannot be heard to say that any difiSculty of any kind can arise 
from this language. She has herself affirmed that there is no such difficulty. She 
thus, herself, has shown her Argument upon these points to be devoid of all serious 
foundation. 

The only possible escape from this position would be to say that Senor de 
Peralta, in his note to M. Delcass^, intentionally and wilfully used language which 
could not define the boundary and, while professing to propose a description which 
should " avoid all possible confusion " as to the boundary, in fact proposed one which 



63 

he knew would create inextricable confusion. If the present conten tiou for Costa 
Rica, on this point, be at all justified, that must be precisely what Senor de Peralta 
did. 

Oosta Kica, therefore, must meet this dilemma ; either Senor de Peralta 
endeayored to mislead the Arbitrator into describing an impossible boundary, or her 
present arguments are empty and entitled to no weight. 

It is unnecessary to say that Costa Bica does not accept the former of these 
alternatives. It is, indeed, impossible of acceptance. To suppose that Senor de 
Peralta and the Government of Costa Rica would be guilty of such unworthy trickery 
is an idea not to be entertained. 

But this involves, necessarily, the result that the description of the boundary in 
the Award, which is precisely the same as that used by Senor de Peralta (so far as 
the points now under consideration are concerned) is clear, plain and in accordance 
with the natural features of the country. Hence the whole elaborate structure of 
argumentation, now put forward by Costa Rica, to show that the Award is defective 
in these respects, falls to the ground and carries with it every objection which Costa 
Rica has made to the interpretation of the Award maintained by Panama. Senor de 
Peralta's note is the refutation of the Argument for Costa Rica. 

" Defense op the Sixaola-Yorquin Line." 

Chapter YIII of the Argument for Costa Rica bears this title. It might be ex- 
pected that here would be found some attempt to show that this line accords with the 
Award of President Loubet, but, in spite of the title, such is not the case. There is, 
in fact, no " defense " of this line. The Argument for Costa Rica wholly and expressly 
abandons it and asks the present Arbitrator to award one of two wholly different 
lines. 1 

In what sense, then, is the expression " Defense of the Sixaola Yorquin line " 
used? Apparently only in the sense that to propose it was laudable in Costa 
Rica as 

" the expression of the sacrifice which Costa Rica was ready to make in order 
to bring an end to the question. ^ (Italics in original.) 



• Argument for Costa Rica, p. 340. 
« IMd., p. 338. 



64 

We confess to the astonishment with which we have read this statement, made, 
apparently, without any consciousness of what it involves. 

lu the first place the statement necessarily means that when Seiior de Peralta 
wrote M. Delcass^ stating that Costa Eica interpreted the Award in the fashion 
which he stated, his statement was false. Costa Rica, according to this conten- 
liou, never did, in fact, interpret the Award as Senor de Peralta said that she did. 
He was endeavoring to deceive M. Delcasse and to induce him to accept, as an honest 
interpretation, what was not an interpretation but a modification. 

We have, indeed, ourselves had occasion to point out the impossibility of defend- 
ing the boundary described by Senor de Peralta as an " interpretation " of the Loubet 
Award. That is obvious. But for Costa Rica to adopt, herself, the position that it 
was never supposed by her that the Loubet Award could be so construed and that the 
description of the boundary, called by Seiior de Peralta an interpretation, was not an 
interpretation in good faith, is, at least, surprising. It is not usual to base an argu- 
ment upon a statement of the former insincerity of the party making it. 

In the second place it is strange to see this description called " the expression of 
the sacrifice which Costa Rica was ready to make." The word is singularly inappro- 
priate. 

Two powers had submitted a question to the arbitration of the President of the 
French Republic and had solemnly promised to abide by his decision. He had ren- 
dered his Award. One of the two powers is prepared to keep faith and accept and 
perform the Award. The other of them says that she will accept the Award only if 
it be made more favorable to her and calls this proposition a " sacrifice ! " 

There is no " sacrifice " in keeping faith. When the decision of a competent 
tribunal is rendered, to submit to it is not a " sacrifice ", It is only compliance with 
a duty which, between private persons, will be enforced by the government which 
instituted the tribunal, and, between nations, is ordinarily made certain by a just 
sense of the demands of national honor. 

But to add to a refusal to comply with this elementary duty a proposal to 
accept a decision more satisfactory to the party refusing, and to call such a proposal 
a " sacrifice " is such a misuse of language and implies such an attitude on the part 
of Costa Rica as we hesitate to characterize. 



65 

Even this " sacrifice " Costa Rica will no longer make and the reasons given for 
her attitude are as extraordinary as her position itself. The argument for Costa 
Eica says : 

" But after Senor Peralta's note was written certaia facts developed that 
permitted, and, indeed, forced Costa Rica to modify the interpretation she 
made at that time." ^ 

What were these facts which exercised such a compelling force upon Costa 
Rica ? The Argument informs us : 

" In the first place the uselessness of the excessive sacrifice made in 
order to settle the question ; after that the spirited protest of Costa Rican 
public opinion that called for the nullification of the Award, and the efforts 
of the Mediator to bring about a basis for agreement by giving Panama to 
understand that as the question then stood, ii could not be resolved by a tnere 
interpretation."^ (Italics in original.) 

That is, Panama would not accept a modification of the Award, but insisted on 
Costa Rica's keeping the promise for which she had pledged her national honor ; 
public opinion in Costa Rica called for a repudiation of her solemn engagements ; and 
the attitude of the United States, at one time (subsequently completely abandoned) 
gave some hopes that if Costa Rica did repudiate her obligations, she might make a 
gain by doing so. 

We doubt if any country has ever set forth such grounds for breach of 
its obligations. Is it to be asserted that a Convention of Arbitration is 
not binding upon a country unless the Award be satisfactory to her; that 
if the other party will not consent to a change in the Award, 
the award becomes without force; that a government is justified in 
repudiating (nay, is " forced " to repudiate) an award which its people do not like ; or 
that the prospect that a stronger, mediating power will support her efforts to escape 
from an unsatisfactory award, releases her from her obligation to accept it, solemnly 
assumed ? 



Argument for Costa Rica, p. 839. 
I Tbid., p. 339. 



66 

The mere statement of these questions is enough to give their answer. Such con- 
tentions are the negation of all international law, of all international honor. They 
make an international arbitration a farce and conventions of arbitration waste paper. 
We confess that it is incomprehensible to us that such an attitude as that of Costa 
Kica should be openly avowed and still more so that it should be presented to an 
Arbitrator to support her new demands. 

Yet these things constitute the whole foundation of the Argument for Costa Rica. 
As we have already pointed out, ultra petita is a mere pretense which a simple inspec- 
tion of the Convention of 1886 sweeps away. It is only a device for making a legal 
point on which to hang a repudiation or modification of the Loubet Award. The pre- 
tended doubts or difficulties in the interpretation of the Award are 
equally without substance. Indeed the greater part of Costa Rica's complaints 
are based upon the view that there is no doubt and no difficulty, 
for they are based upon the acceptance of Panama's contention as to its 
meaning and would be wholly unfounded if that were not accepted. 

Thinly disguised, sometimes, under a cloud of words, sometimes (as in the pass- 
ages which we have been considering) avowed with cynical frankness, Costa Rica's 
purpose is, not the interpretation, not the application, hut the repudiation of the 
Loubet Award. Therefore, as we have several times noted, she does not attempt to 
give a meaning to the Award nor express a theory as to how it should be practic- 
ally applied upon the ground. There is nothing to discuss upon these points. The 
meaning of the Award was always clear, and if there ever was any doubt as to its 
practical application, there can be none left since the report of the Commission of 
Engineers. Costa Rica has no doubt upon either point. She does not desire to 
maintain the Award but to overthrow it, and all her prayers to the Arbitrator are to 
disregard it, not to conform to it. 

This is made especially apparent in the two alternative lines suggested. Neither 
of them in the least accords with the Loubet Award, between the Atlantic and Cerro 
Pando. While called "interpretations," this is because the Argument for Costa 
Rica undertakes to give that word a meaning which it will not bear. 

Starting from the unfounded assumptions, first that the broad question of the 
proper boundary is before the present Arbitrator and, second, that the intent of Presi- 
dent Loubet is to be divined by the present Arbitrator, it goes on to a third assump- 
tion, equally unfounded, that the Award does not express the real intent of President 



67 

Loubet, because it is not what Costa Eica contends that it ought to be'. On this 
unsubstantial foundation the Argument proceeds to imagine two lines, either of which 
Costa Eica would accept, and calls them " interpretations " of the intent of President 
Loubet. 

We shall not go again at length into the demonstration of the facts that the ques- 
tion of the abstract proper boundary is not involved upon this Arbitration at all, that 
the intent of President Loubet, except as expressed in his Award, is equally foreign to 
it and that it is iitterly futile to attempt to attribute to him intentions contrary to or 
not expressed in the Award itself. We have already shown (if showing were 
needed) that Panama has never consented and will never consent to submit to 
arbitration the correctness or absolute validity of the Loubet Award ; that the 
present Convention was drawn carefully to restrict, and does restrict, the 
question submitted, to the mere interpretation and application of the 
Loubet Award ; that the " true intention " of the Award and not of President Loubet 
(if the latter could be supposed to differ from what the Award expresses and could be 
ascertained) is the only subject of this Arbitration ; and that the Award is the only 
proof of what was intended by it. 

But, in reality, even so much is superfluous and we do injustice to the learned 
representatives for Costa Eica in supposing that they do not recognize these things. 
No one who has even read the documents in the case can need to have them pointed 
out, far less those who have made a study of the subject. 

When, therefore, Costa Eica proposes lines which begin at the mouth of the 
Changuinola or of the Sixaola and follow the beds of these rivers, we cannot doubt, 
even if she did not avow it, that she does not intend to be guided by the Loubet 
Award at all and proceeds upon the deliberate proposition of discarding it altogether. 

Of course all this is wholly outside the scope of this Arbitration, and cannot be 
considered. We must again decline to discuss the long argument by which Costa 
Eica undertakes to show that such boundaries as she now proposes would have been 
proper. They are based upon statements of historical matter and documents anterior 
to the Loubet Award, and have no relevancy here. 

Even if the present Arbitrator could be convinced that President Loubet should 
have awarded a difl'erent boundary from that of the Award, that is not a question 

' Argument for Costa Kica, p. 339. 



68 

here to be considered, nor which can aflfect his decision. As we have many times 
had occasion to point out, the question here is, not what boundary should President 
Loubet have awarded, but what boundary did he award. The whole Argument of 
Costa Eica is occupied solely with the former question and that is the reason for its 
irrelevancy. The second question, what boundary President Loubet did award, the 
only one here to be determined, the Argument for Costa Eica considers only in re- 
peated attempts to show that President Tjoubet awarded no boundary or none that 
can be determined. Of course, as we have already noted, if that were so, the situa- 
tion would be precisely that which arose under the arbitration of the Northeastern 
boundary of the United States with Great Bi-itain, in which the arbitrator declared 
himself unable to decide the boundary under the treaty of 1782-83, and 
so traced a boundary himself. The award was ultra petita, since the 
arbitrator was asked, not to determine the absolutely proper boundary, 
but only to define the boundary as fixed by the treaty ; and the arbitration 
ended in nothing. Such would be the case here if the Loubet Award were to be dis- 
regarded or modified as Costa Rica urges. 

For the reasons stated, therefore, we cannot enter into the considerations by 
which Costa Kica attempts to show the abstract justice of the alternative boundaries 
which she suggests. Neither of them can be awai'ded upon this Arbitration, neither of 
them professes, even, to be within the Loubet Award, and therefore no discussion of 
either of them is authorized here. 

We shall, however, as with regard to other parts of tho Argument for Costa Eica 
which we have considered ourselves not authorized to discuss, as to their substance, 
note certain errors in that Argument which we think should be corrected. In doing 
this we shall not again refer to any repetitions of three leading errors which we have 
already considered so much at length that we believe that any further correction is 
unnecessary. These are : fi7'st, the statement that the Loubet Award is in 
any respect, idtra petita ; second, that the Award does not fix any 
boundary or is defective in any way or that M. Delcasse's note admits any such 
thing ; third, that it is within the scope of the present Arbitration to fix a boundary 
apart from that awarded by President Loubet or to modify his award. Any further 
discussion of these errors on the part of Costa Rica would be superfluous. We shall 
confine ourselves, accordingly, to one mis-statement. 



69 

It is said, in the Argument for Costa Eica, that the line described by Senor de 
Peralta was " accepted by Panama," because a part of the line fixed by the Guardia- 
Pacheco treaty (which never became effective because Costa Rica refused to ratify it) 
coincides with a part of the Peralta line.^ 

How this fact shows acquiescence in the Peralta line as a correct rendering of the 
Loubet Award we are at a loss to conceive. That such a supposition would be 
totally erroneous is to be seen from the preamble to the Guardia-Pacheco treaty, 
which is quoted in the Argument for Costa Rica, which recites that 

" circumstances have profoundly changed, since the period lohen the arbitral 
judgment was delivered, hereinbefore mentioned, to those of to-day ; that 
these circumstances constrain the two Republics to establish a frontier line 
that shall better accord loith their present and future interests." ^ 

Thus it appears that by the Guardia-Pacheco treaty it was intended to establish 
a different line from that of the Award, and it was this new line and not the line of 
the Loubet Award which was, in part, the same as the Peralta line. 

The " Final Considerations " of the Argument for Costa Rica. 

In Chapter X of the Argument for Costa Rica, entitled " Final Considerations ", 
there are tabulated a series of conditions to which the Loubet Award must conform. ^ 
Except the first (that the boundary must not go outside the disputed territory) these 
are all purely fanciful. Some, no doubt. President Loubet did take into account, 
and some he may not have considered. But however this may be, as tests by which 
to try his award, they are worse than worthless. 

It is true that we are not here to test his Award at all. Both Panama and Costa 
Rica have, by the convention of 1910, under which this Arbitration is held, affirmed 
anew its validity and correctness and removed those questions from the field of dis- 
cussion. But if any test of the Award were to be made, no such conditions as those 
stated by Costa Eica could be of any use. On the contrary their adoption would 
amount to an annulment of the Award. They could never be applied without a com- 



' Argument for Costa Rica, p. 382. 
^Ibid., p. 427. 
' IMd. p. 424. 



70 

plete review of the whole subject which President Loubet considered and a determi- 
nation, de novo, of what he determined. His Award would be discarded where it 
did not agi-ee with the new conclusions reached and useless where it did, for 
the whole decision would be based upon the new conclusions. 

We note this passage in the Argument for Costa Rica only because it serves to 
bring out in a more glaring light what is the true purpose of that Argument. The 
question submitted by the Convention is the " correct interpretation and true inten- 
tion " of the Loubet Award, but Costa Rica proposes the abandonment of the award 
altogether. 

The boundary is not the subject of this Arbitration. With the boundary, as such, 
we have nothing to do. The Award alone concerns us and the boundary is involved 
only because that is what the Award describes. What is to be considered here is only 
one simple question — what boundary does the Award describe ? That and that only 
is the sole and exclusive subject for consideration. The manner in which Costa Rica 
proposes to deal with it is to discard the Award altogether and the answer which she 
proposes to the question is to describe a line which it is not even pretended is that of 
the Award. It is no wonder that the arguments in support of such a proposition are 
irrelevant to the true purpose of this Arbitration. 



Conclusion. 

We have thus reached the end of our examination of the Argument for Costa 
Rica, and while it is elaborate, learned and acute, we fail to find in it anything to 
invalidate the conclusions expressed in our original Statement. 

In fact, that Statement and the Costa Rican Argument differ wholly in their pur- 
pose and as completely in their substance. 

We applied ourselves to elucidate the meaning and purpose of the Award and the 
method of applying it to the actual geographical situation so as best to effectuate it. 
This, we conceive, is the sole object of this Arbitration. 

The Costa Rican Argument does not consider this question, but devotes itself 
to showing first that the Loubet Award is erroneous and unjust ; second, that it is 
void as ultra petita ; third, that its language has no intelligible meaning ; fourth, that 
it constitutes no award but leaves the boundary as unsettled as President Loubet 



71 

found it ; and that the present Arbitration involves the fixing, not of the line of the 
Loubet^^Avrard, but of the line which that Award ought to have fixed, and an inquiry, 
not as to the meaning of the Award, but its correctness. The Arbitrator is therefore 
asked to award a boundary almost wholly differing from any possible construction of 
that fixed by President Loubet. 

The fundamental question here is as to the scope of the present Arbitration and 
we believe that it has been conclusively demonstrated that the contention of Costa 
Eica is not only in direct conflict with the language of the Convention, but that the 
Convention was expressly and carefully worded so as to confine this Arbitration to 
the sole purpose of the construction and application of the Loubet Award. It has 
been shown that Costa Eica constantly struggled to bring within its scope precisely 
the questions which she is now trying to raise, that Panama as constantly and firmly 
refused to consent to such an Arbitration and that Costa Eica yielded and accepted 
the present Convention, knowing that by it these questions were excluded. 

By that demonstration the whole argument for Costa Eica became, as we have 
frequently had occasion to say, irrelevant. 

For novjhere in that Argument is there any ^pretence, even, of a rational interpreta- 
tion of the Louhet A ward, nor any attempt to describe any boundary different from that 
described by Panama lohich should accord with the Atuard. 

The question being simply what is the boundary according to "the correct 
interpretation and true intention " of the Loubet Award, it is plain that the only 
relevant argument must be one which tends to show what is (and not what ought 
to be) the boundary fixed by the Award. Costa Eica declines to discuss this matter. 
Her nearest approach to it is to argue that no boundary is fixed by the Award. 
This does not aid in solving the question. The argument for the boundaries 
suggested in her argument is of no avail, for it is admitted, and, if it were not, is 
evident, that neither of these in the least agrees with the terms of the Award. 

The Argument for Costa Eica amounts, therefore, to an admission that the line 
lohich Panama claims is the line of the Loubet Award. 

But we are not left to this tacit admission alone. The Costa Eican ArguDient 
is one long complaint of the injustice of the Award, interspersed with contentions 
that it is vUra petita. Both are based upon the same ground and that is that the 
Award gives Panama precisely what she claims under it. Whatever complaints, 



72 

otherwise, Costa Eica might have devised, the fact is that her actual 
contentions are based solely on the assumption that the line claimed 
by Panama is the line of the Award. If that were not so the 
very facts upon which her arguments rest would be lacking and if 
the principles for which she contends were admitted, she would fail to show that they 
were violated. Thus Costa Rica substantially not only admits but asserts that the 
view of Panama, as to the " correct interpretation and true intention " of the Loubet 
Award, is correct. 

Costa Rica is arguing two questions not before the Arbitrator ; first, is the 
Loubet Award right ; second, what, leaving the Loubet Award aside, ought to be the 
boundary. Neither of these questions has she the right to raise, and neither of them 
will Panama discuss. Costa Rica does not discuss the only question which is 
involved here, viz. : what is the boundary fixed by the Loubet Award. This is the 
only question argued by Panama. Therefore the two arguments are wholly divergent, 
based upon different premises and tending to different ends. 

But while Panama admits nothing alleged by Costa Rica on the subjects which 
the latter argues, and simply declines to consider them, as irrelevant to the matter in 
hand, Costa Rica does not contest the arguments of Panama upon the real question 
for Arbitration, but accepts the correctness of her interpretation of the Award, and 
bases all her arguments upon it. 

There is, therefore, nothing in the Argument for Costa Rica (excepting the 
inadmissible contentions, not to be taken seriously, that the Award has no meaning, 
fixes no line and cannot be applied) to countervail the arguments advanced for 
Panama and we respectfully submit to the Arbitrator that the Award requested for 
Panama in our original statement is proper and should be made. 

EusEBio A. Morales, 
Minister of the Republic of Panama to the United States and Special 
Representative of the Republic upon the Arbitration. 

Wm. Nelson Cromwell, 
Edward Bruce Hill, 
Counsel of the Republic of Panama. 



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